Naicovi v The State [2004] FJHC 449; HAA0053.2004L (13 August 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0053 OF 2004L

SEREMAIA NAICOVI
TANIELA RASUAKI

v

THE STATE

Ms. J. Nair for the appellants
Mr. S. Qica for the State

Date of Hearing: 30 July 2004
Date of Sentence: 13 August 2004

JUDGMENT

This is an appeal against sentence by each of the appellants. The appellants were each sentenced to a term of 10 years imprisonment for the following offences: -

FIRST COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: contrary to section 293(1) of Penal Code Cap.17.

Particulars of Offence

SEREMAIA NAICOVI and TANIELA RASUAKI together with others on the 21^st day of September 2003 at Navau Ba in the Western Division robbed NARESH CHAND s/o Rup Narayan of a casio wristwatch valued $35.00, a gas lighter valued $1.70, a torchlight valued $3.00, a penknife valued $4.00 and a packet of Benson and Hedges valued $2.00 to the total value of $45.70 the property of the said NARESH CHAND s/o Rup Narayan and immediately before such robbery did use personal violence on the said NARESH CHAND s/o Rup Narayan.

SECOND COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(a) of Penal Code Cap 17.

Particulars of Offence

SEREMAIA NAICOVI and TANIELA RASUAKI together with others on the 21^st day of September 2003 at Navau Ba in the Western Division robbed RAVINDRA SINGH s/o Vikram Singh of casio wristwatch valued $25.00, a packet of Benson and Hedges valued $2.00, a gas lighter valued $1.70 and cash $65.00 to the total value of $93.70 the property of the said RAVINDRA SINGH s/o Vikram Singh and immediately before such robbery did use personal violence on the said RAVINDRA SINGH s/o Vikram Singh.

THIRD COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(a) of Penal Code, Cap. 17.

Particulars of Offence

SEREMAIA NAICOVI and TANIELA RASUAKI together with others on the 21^st day of September 2003 at Navau Ba in the Western Division robbed PRAKASH CHAND s/o Dukhran Prasad of a wristwatch valued $45.00 the property of the said PRAKASH CHAND s/o Dukhran Prasad and immediately before such robbery did use personal violence on the said PRAKASH CHAND s/o Dukhran Prasad.

FOURTH COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(a) of Penal Code, Cap. 17.

Particulars of Offence

SEREMAIA NAICOVI and TANIELA RASUAKI together with others on the 21^st day of September 2003 at Navau Ba in the Western Division robbed JITENDRA PADARATH s/o Ram Padarath of assorted gold jewelleries valued $,005.00 and cash of $1,900.00 to the total value of $5,905.00 the property of the said JITENDRA PADARATH s/o Ram Padarath and immediately before such robbery did use personal violence on the said JITENDRA PADARATH s/o Ram Padarath.

FIFTH COUNT

Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to section 292 of Penal Code, Cap. 17.

Particulars of Offence

SEREMAIA NAICOVI and TANIELA RASUAKI together with others on the 21^st day of September 2003 at Navau Ba in the Western Division unlawfully and without colour of right but not so as to be guilty of stealing took to their own use private car Registration Number DL 340 the property of JITENDRA PADARATH s/o Ram Padarath.

SIXTH COUNT

Statement of Offence

DRIVING MOTOR VEHICLE WITHOUT DRIVING LICENCE: Contrary to section 56(6) and 114 of the Land Transport Act No. 35 of 1998.

Particulars of Offence

TANIELA RASUAKI on the 21^st day of September 2003 at Maururu Ba in the Western Division drove a private motor vehicle Registration Number DL 340 on Maururu Road, Ba without being a holder of a driver’s licence appropriate to the class of the said vehicle.

SEVENTH COUNT

Statement of Offence

DRIVING MOTOR VEHICLE IN CONTRAVENTION OF THIRD PARTY POLICY RISK: Contrary to section 4(1)(2) of Motor Vehicle Third Party Insurance Act, Cap. 177.

Particulars of Offence

TANIELA RASUAKI on the 21^st day of September, 2003 at Maururu Ba in the Western Division drove a private motor vehicle Registration Number DL 340 on Maururu Road, Ba when there was not in force in relation to the use of the said motor vehicle, a policy of insurance in respect of the motor vehicle Third Party Policy Insurance.

The appellants pleaded guilty to all 7 charges on 26^th September 2003. The appellants waived their rights to counsel.

The facts were that on 21^st September 2003 at about 2230 hours at Navau, Ba, the appellants together with 4 others punched and threatened with a cane knife, Naresh Chand, Ravindra Singh, Prakash Chand and Jitendra Padarath and robbed those persons of items and goods, having a total value of approximately $6,100.00. In addition, the appellants together with 4 others, on the same date and at about the same time, unlawfully used a motor vehicle, the property of Jitendra Padarath. In addition, the appellant Rasuaki drove the said vehicle without a driving licence and in contravention of the third party policy risk.

The facts were admitted by both appellants.

The appellant Naicovi, was on 2^nd May 2001, sentenced to 12 months imprisonment suspended for 2 years at Ba Magistrate’s Court for robbery with violence.

The appellant Rasuaki, has no relevant prior conviction.

The 1^st appellant Naicovi is 21 years of age and is a cane cutter and the 2^nd appellant is 37 years old and divorcee with elderly parents.

The Learned Magistrate sentenced both accused to a total of 10 years imprisonment. The sentences with respect to the 1^st, 2^nd, 3^rd and 4^th counts were 5 years imprisonment and the sentences on counts 1 and 2 were ordered to be consecutive with the sentence on counts 3 and 4 and concurrent with each other. Remaining sentences were concurrent with counts 1 and 2.

The Learned Magistrate expressed the view that he had taken account of the totality principle in fixing the sentences.

Winter J. in Waisake Matahau Uluikadavu v State – HAA035 of 2004 considered the relevant authorities for robbery with violence offences. His Lordship concluded that the starting point for home invasions by multiple accused is 6 to 8 years imprisonment.

In this instance, a weapon was used and accordingly the starting point should be at the top end of the range, 8 years. The early plea of guilty entitles both the appellants to a discount of 1/3 thus reducing the sentence to 5 ½ years.

The offence was aggravated by use of violence and which result an injury to the innocent occupants of the farmhouse. It was a planned attack. This aggravation increases the sentence to 7 years.

The appellant Naicovi, having a prior conviction for the same offence of necessity, attracts a more sentence than Rasuaki. I consider an additional 1 year to be appropriate. These penalties are appropriate for counts 1 to 4 inclusive. Nothing has been put to the court with respect to the penalties imposed on counts 5 to 7 inclusive and accordingly they shall remain unaltered.

Counts 1 to 4 inclusive were committed at the same time and the same place with the 4 separate victims being robbed. In these circumstances, it is inappropriate to make the sentences accumulative – Pearce v The Queen [1998] HCA 57; [1998] 194 C.L.R 610 – as I am of the opinion that “the imposition of accumulative sentence was incommensurate with the gravity of the whole of his proven criminal conduct or with his due deserts” – Reg v Knight [1981] 26 S.A.S.R. 573 at 576.

It is necessary to apply the totality principle as expressed in Thomas, Principles of Sentencing, 2^nd Edition [1979] pp 56 – 57 – as set out in Mill v The Queen [1988] HCA 70; [1988] 166 C.L.R. 59 at 63: -

“Where cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour then ask itself, what is the appropriate sentence for all the offences.”

The resultant and sentences would, in my opinion, be 11 years for the appellant Nacovi, and 9 years for the appellant Rasuaki.

Clearly, the sentence arrived at by the Learned Magistrate is such, that it is within the range and should not be interfered with both respect to the appellant, Rasuaki and is less than I would have imposed for the appellant Naicovi.

Accordingly the appeals are dismissed.

JOHN CONNORS
JUDGE

AT LAUTOKA
13 AUGUST 2004