Qoro v The State [2004] FJHC 491; HAA0087 & 96.2004L (22 October 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. HAA0096 OF 2004L
& HAA0087 OF 2004L

KOLINIO QORO
Appellant

v.

THE STATE
Respondent

Appellant in person
Mr. M. Korovou for the respondent.

Hearing & Ruling: 22 October 2004

JUDGMENT

These are appeals against sentence.

The appellant was convicted on his plea of guilty on the 14^th April 2004 and sentenced to 4 years imprisonment on the first count and 12 months imprisonment on the second count. The offences are:

FIRST COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293 of the Penal Code, Cap. 17.

Particulars of Offence

Kolinio Qoro with 2 others on the 6^th day of March 2004 at Vatukarasa, Sigatoka in the Western Division, robbed INTAZ ALI s/o Sattar Ali of one wrist watch valued at $35.00 and $200.00 cash to the total value of $235.00, the properties of the said INTAZ ALI s/o Sattar Ali.

SECOND COUNT

Statement of Offence

LARCENY: Contrary to section 259 and 262 of the Penal Code, Cap. 17.

Particulars of Offence

KOLINIO QORO with 2 others on the 6^th day of March 2004 at Vatukarasa, Sigatoka in the Western Division, stole one taxi meter of taxi registration no. DX 717 valued at $400.00, the property of JOHNNY SYLVESTER s/o Bhagwan Singh.

The facts as presented to the Learned Magistrate and accepted by you were that the taxi no. DX 717 owned by Johnny Sylvester and operated by Intaz Ali was on the 6^th March 2004, stopped by the appellant who asked for a ride to Vatukarasa, the end of the roundabout by the bridge. Two other people got into the taxi at Vatukarasa. The appellant asked the driver to drive into Balenabelo Road where the appellant and others forced the driver to stop. The appellant and others got out of the car, pulled the driver out of the car, robbed him of his watch and cash. The driver tried to escape, was punched and forced to sit at the back. The appellant and others sat in the taxi whilst another person drove it to Korolevu, the Hideaway Resort, the taxi was stopped and the driver escaped and went into the Hideaway Resort and reported the matter. The appellant and others were then stopped and arrested on their return journey.

The Learned Magistrate in imposing penalties on the appellant took into account the appellant’s plea of guilty and the matters submitted in mitigation together with his prior convictions.

The magistrate concluded that the tariff for the first count, that is, robbery with violence is between 3 and 8 years. He described the aggravating factors, that the appellant and others hired a taxi, punched the driver, stole from him and the appellant’s prior convictions.

The Learned Magistrate then used 6 years as a starting point for Robbery with Violence and taking account of mitigating and aggravating factors reduced that to an effective term of 4 years imprisonment.

With respect to the larceny, the Learned Magistrate imposed a period of 12 months imprisonment with both sentences to be served concurrently.

With respect to these penalties, the penalty for robbery with violence, does not appear to be excessive and the authorities now in this country suggest that the starting point for an offence such as this, is up to 8 years or it might be interpreted in some of them as a finishing tariff of 8 years.

There is nothing that has been placed before me to suggest that the resultant sentence is wrong in principle or manifestly excessive and accordingly the appeal with respect to the robbery with violence and larceny is dismissed.

The second appeal (HAA0087 of 2004L) relates to the activation of a prior suspended sentence for the same offence, that is robbery with violence. The Learned Magistrate activated the suspended sentence and directed that it be served consecutively with the sentences for the other 2 offences.

Whilst the Court of Appeal has on prior occasions suggested that the activated suspended sentence should not necessarily be consecutive but may be concurrent, I am satisfied in this instance due to the nature of the offence for which the suspended sentence was given, that it is appropriate that it be served consecutive to the other penalties and accordingly, I see nothing wrong in principle in the sentence of the Learned Magistrate nor do I find the imposition of a consecutive sentence manifestly excessive, the appeal is dismissed.

JOHN CONNORS
JUDGE

At Lautoka
22 October 2004