Wakanibua v The State [2004] FJHC 495; HAA0095.2004L (29 October 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0095 OF 2004L

NEMESIO WAKANIBUA
Appellant

v.

THE STATE
Respondent

Appellant in person
Mr. M. Korovou for the respondent

Hearing & Ruling: 29 October 2004

EXTEMPORE JUDGMENT

The appellant was on the 26^th April 2004 convicted at the Nadi Magistrates Court for the offences of robbery with violence, unlawful use of a motor vehicle, driving a motor vehicle without being a holder of a driver’s license and using a motor vehicle in contravention of the third party policy and was on the 10th May 2004 sentenced to imprisonment for 3 years with respect to the first count. In addition, a previous suspended sentence was activated resulting in a consecutive sentence of 6 months imprisonment.

The appellant appeals against the sentence which is in effect 3 years and 6 months.

The facts as placed before the Learned Magistrate and acknowledged by the appellant were that the appellant and another on the 24^th April 2004 at Nadi robbed Ram Pratap of a mobile phone worth $171.00, wrist watch valued at $60.00 and $120.00 cash and used personal violence in the commission of such robbery. They then took away the vehicle he was driving, a taxi registered number DX 207, the property of Iqbal Khan.

The accused pleaded guilty to the charges and elected trial in the Magistrates Court for the first count and forfeited his right to counsel. The Learned Magistrate in assessing the penalty to be imposed took as a starting point the issues detailed in a memorandum from the Chief Justice issued in the year 2003 which memorandum suggests a starting point of 8 years. The authorities support such a starting point.

The Learned Magistrate then took into account mitigating factors being the early plea of guilty, the recovery of the mobile phone, the minor nature of the injuries suffered by the complainant and the small value of the property loss by the complainant and reduced the penalty to 3 years. She took into account the remorse shown by the appellant and that he had offered to pay compensation of $200.00 with the resultant sentence being 3 years imprisonment.

The appellant submits that he is being sentenced twice because he paid the $200.00. I note from the sentencing remarks that the compensation was paid in mitigation of the penalty to be imposed and its treated in that way. He also submits his parents are elderly, not working and his sisters are married. He wants to get back to help his family and he seeks forgiveness and mercy from this court.

This court can only interfere with the sentence imposed by the Learned Magistrate if such sentence is wrong in principle or manifestly excessive. There is nothing apparent from the court record or that has been placed before me that would suggest that the sentence is wrong in principle or manifestly excessive and accordingly, the appeal is dismissed.

JOHN CONNORS
JUDGE

At Lautoka
29 October 2004