Ratuvukicinigauna v The State [2004] FJHC 500; HAA0114.2004L (29 October 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0114 OF 2004L

IOSEFO RATUVUKICINIGAUNA
Appellant

v.

THE STATE
Respondent

Mr. M. Naivalu for the appellant
Mr. K. Tunidau for the respondent

Hearing: 15 October 2004
Judgment: 29 October 2004

JUDGMENT

The appellant pleaded guilty on the 2^nd August 2004 before the Lautoka Magistrates Court and was convicted of the following offences:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

IOSEFO RATUVUKICINIGAUNA and PAULIASI NAUASARA, with others on the 19^th day of September 2003 at Balawa Road, Lautoka in the Western Division, unlawfully and without colour of right but not to be guilty of stealing took a van registration number EE 210 to their own use, the property of SADA SIWAN REDDY s/o Kaliappa Reddy.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

IOSEFO RATUVUKICINIGAUNA and PAULIASI NAUASARA with others on the 19^th day of September, 2003 at Balawa Road, Lautoka in the Western Division, robbed SADA SIWAN REDDY s/o Kaliappa Reddy $30.00 cash and immediately before the time of such robbery did use personal violence on the said SADA SIWAN REDDY s/o Kaliappa Reddy.

THIRD COUNT

Statement of Offence

WRONGFUL CONFINEMENT: Contrary to section 256 of the Penal Code, Cap. 17.

Particulars of Offence

IOSEFO RATUVUKICINIGAUNA and PAULIASI NAUASARA with others on the 19^th day of September 2003, at Balawa Road, Lautoka in the Western Division, wrongfully confined SADA SIWAN REDDY s/o Kaliappa Reddy in van registration no. EE210.

FOURTH COUNT

Statement of Offence

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

Particulars of Offence

IOSEFO RATUVUKICINIGAUNA and PAULIASI NAUASARA with others on the 19^th day of September 2003, at Vitogo Parade, Lautoka in the Western Division, robbed Safeway Electronics Shop of assorted Alcatel fastphones, relays, sensors, taxi meters, actuators, starter pack, batteries, hitachi 13mm drill, cable tiers, moneybox, car alarm, Nokia fastphones, cash $565.00, all total value of $12,004.00 and immediately before the time of such robbery, did use personal violence on Shiu Lingam Krishan s/o Krishna, the property of Safeway Electronics Limited.

FIFTH COUNT

Statement of Offence

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

Particulars of Offence

IOSEFO RATUVUKICINIGAUNA and PAULIASI NAUASARA with others, on the 19th day of September 2003, at Vitogo Parade, Lautoka in the Western Division, robbed ZALIMUN NISHA d/o MOHAMMED HANIF of $80.00 cash and immediately before the time of such robbery did use personal violence on the said ZALIMUN NISHA d/o Mohammed Hanif.

The appellant was sentenced as follows:

(a) First Count - 6 months imprisonment
(b) Second Count - 5 years imprisonment
(c) Third Count - 6 months imprisonment
(d) Fourth Count - 5 years imprisonment
(e) Fifth Count - 5 years imprisonment

All terms of imprisonment were to be served concurrently.

The appellant appeals against the conviction and sentence.

The appellant first appeared before the Lautoka Magistrates Court on the 13^th April 2004 when he entered a plea of not guilty to all 5 counts. The appellant again appeared before the Lautoka Magistrates Court on the 24^th May 2004 and on that day, he was represented by his lawyer, Mr. Iqbal Khan. Disclosures were served and the matter adjourned to the 28^th May 2004 for mention only.

On the 28^th May 2004, the record shows that the appellant appeared without counsel and the matter was adjourned to the 2^nd July 2004 for hearing.

On the 2^nd July 2004, the appellant again appeared unrepresented. When the prosecution sought that the matter not proceed and it be adjourned to the 2^nd August 2004 for hearing. On that day, 8 witnesses for the prosecution were present, however 1 police officer was at the Police Academy in Suva and the 2^nd accused was not present, he being in custody.

On the 2^nd August 2004, the appellant again appeared unrepresented and on that day changed his plea to guilty on all charges. The record shows that all charges were read and explained to the 1^st accused and that he understood all charges. The election was put to him and he chose Magistrates Court with respect to the 1^st, 2^nd, 4^th and 5^th counts.

The facts as presented to the Learned Magistrate and accepted by the appellant were that with respect to the 1^st count, the appellant on the 19^th September 2003 at about 2.30pm at Balawa Road, Lautoka unlawfully used a van registered No. EE 210 valued at $16,500.00 the property of Sada Siwan Reddy. With respect to the 2^nd count, on the same day and time the appellant and others robbed Sada Siwan Reddy of $30.00 and then immediately before such robbery did use personal violence.

With respect to the 3^rd count, the facts that on the same time, date and place the appellant with others wrongfully confined the said Sada Siwan Reddy, by tying his hands and legs.

With respect to the 4^th count, the facts are that on the same date at 1500 hours at Vitogo Parade, Lautoka, the appellant and others robbed Safeway Electronics Limited of goods valued at $12,004.00 and immediately before such robbery, used personal violence on Shiu Lingam Krishan, a 22 year old technician.

With respect to the 5^th and final count, it is alleged that on the same time, date and place, the appellant and others robbed Zalimun Nisha Buksh d/o Mohammed Hanif, 38 year old, of $80.00 and documents and before such robbery, used personal violence on her.

Sada Siwan Reddy was driving his van, registered no. EE 210 in the city area and that Vakabale Street and unknown Fijian girl hired the van to get to Balawa Road Lautoka. The Fijian girl sat in the front seat of the van. The van was driven to Balawa Road and stopped near a mango tree opposite the cemetery. The appellant with 3 or 4 others opened the door and entered the van forcefully. They all sat down and one of them grabbed the neck of the said Sada Siwan Reddy from the back and pulled him to the rear seat. They tied his eyes, hands and legs with pieces of cloth and put him on the floor of the van beside the rear seat. The appellant then drove the van and the others were seated in it and on the way the others kicked the said Sada Siwan Reddy when he tried to get up. The van was driven by the appellant and on the way, one of the offenders searched and took out cash of $30.00 from the trouser pocket of Sada Siwan Reddy.

The appellant drove the van and parked beside Safeway Electronics at Vitogo Parade, Lautoka. He stayed in the driver’s seat of the vehicle when others got out of the van with stones in their hands and ran into Safeway Electronic Shop, where they threatened and assaulted Zalimun Nisha Buksh and Shiu Lingam

Krishan and packed goods valued at $12,004.00. They also stole a black bag containing cash of $80.00 and some documents. They then returned to the van and drove away and stopped in Vio Road where they decamped with the items into cartons.

The matter was reported to the police and officers on mobile patrol found the van in Vio Road and arrested the appellant at Waiyavi, Lautoka. The appellant was interviewed under caution and admitted being the driver of the van.

With respect to the appeal against conviction, it is submitted on behalf of the appellant that the Learned Trial Magistrate failed to comply the provisions of clause 28(1)(d) of the Constitution in not giving the appellant the opportunity to be represented by a legal practitioner of his choice prior to the accused entering a plea of guilty. In support of this ground of appeal, the appellant relies upon Surend Singh v The State – Crim. App. No. 079 of 2000S. In this judgment, Madam Justice Shameem, canvasses the authorities both in Fiji and elsewhere with respect to the need of an accused to be informed of his right to a lawyer.

After considering the authorities Her Ladyship said:

“What is the effect of non compliance? In each case, regard must be had to the nature of the proceedings. In a serious case such as this one, the record must be examined for evidence of an unequivocal plea, and a summary of facts, which outlines all ingredients of the offence in the manner, which lay persons who may not be well educated and who have not received legal advice, will understand.”

The appellant is a student at the Fiji Institute of Technology, Ba. He is 20 years of age and is in third stage of a certificate in electrical engineering.

As is detailed above, the record indicates that he was on the 24^th May 2004 represented by Mr. Iqbal Khan and the record also shows that the disclosures were served on that day. It therefore would appear from the record, that the appellant had the opportunity to have legal advice prior to the entry of plea of guilty and the failure of the magistrate to ask if he required to be legally represented on the 2^nd August 2004 would appear in the circumstances to be unnecessary. It also appears from the court record that the appellant is the son of a Member of Parliament and his mother is a secretary with the Ports Authority. He certainly, from the record, appears to be a person with education and support sufficient to be well aware of what he was doing at the time he entered the plea of guilty on the 2^nd August 2004, which was almost 12 months after the offences were committed and approximately 3 months after he was first represented by a lawyer.

Applying the tests as expressed in Surend Singh v The State, I find that on the record the appellant was asked if he understood the charge. The facts are indeed clear, the appellant is an educated person who had legal advice at an earlier point in the proceedings and accordingly, I find that the pleas entered were unequivocal and that the convictions are therefore safe. The appeal against conviction is therefore dismissed.

With respect to the sentence imposed by the Learned Magistrate, it is submitted on behalf of the appellant in a well prepared, well documented and well presented argument by Mr. Naivalu on his behalf that the sentences were excessive and harsh in the circumstances. With respect to this ground, the appellant relies on Solomoni Rokotovitovi v The State – Crim. Appeal HAA0114 of 1997. In that case, Mr. Justice Surman reduced the period of 5 years imprisonment to 3 ½ years imprisonment for a charge of robbery where a taxi driver had been taken hostage in similar circumstances and passengers were robbed. It seems to have been an offence where the planning was less and the value of property stolen was significantly less. I see little comparison between that matter and the proceedings, the subject for the appeal.

In Peni Raiwalui v The State – HAA0030 of 2003S, Madam Justice Shameem said that:

“In respect of sentence, the tariff for robbery with violence in Fiji is 4 to 7 years. Although no injuries were inflicted on the taxi driver, the acts of tying him up and leaving him in an isolated area are very serious. A starting point of 5 years imprisonment is appropriate. The appellant was entitled to substantial discount for his youth and good character. I consider that the 2 year discount for those factors and for the guilty plea, is not wrong in principle.”

In Raymond Sikeli Singh & Ors v The State – FCA Crim. Appeal No. AAU0008 of 2000S, the court considered New Zealand authorities and then concluded:

“For arriving and a starting point a combination of fact is significant for the purposes of this case and there is enough to say the court held but the starting point for serious armed robbery of commercial premises start at 6 or more years. Where there is a greater risk of harm or actual violence used, the starting point was set to be 8 years or more. The court noted that in the case of a very serious armed robbery starting point of about 10 years would be appropriate.”

It would appear that these are the authorities to be relied on when looking at appropriate sentences for the offences committed by the appellant in this matter.

The third ground of appeal is that the Learned Trial Magistrate failed to take into account the appellant’s mitigating factors. Various authorities are submitted in this regard, however a perusal of the court record reveals this not to be so. On page 10 of the court record, the magistrate details the mitigating factors that he took into account:

“20 years old. FIT student in Ba doing trade certificate in electrical engineering. Doing 3^rd stage. Ask for leniency and forgiveness. It was peer pressure. My father is Daniel Uraia – a member of parliament. My mother is a secretary with Ports Authority, Lautoka. Have other 4 brothers and 1 sister. Am 3^rd eldest. Promise that I will not reoffend. Am single.”

The mitigation, was clearly taken into account and I see no merit in this ground of appeal.

The fourth ground of appeal is that the Learned Trial Magistrate erred in law and in fact in not applying established sentencing principles and or wrongly applying the said principles. Again various authorities are submitted on behalf of the appellant for this ground.

The Learned Magistrate in his reasons for sentence again details the mitigating factors and briefly outlines the facts of the matters. Unfortunately, he does not give any starting point or any reasoning to assist in how the penalties were ultimately determined.

The fifth ground of appeal is that the Learned Trial Magistrate erred in law and in fact in that he failed to take into account the appellant was a first offender and had no previous convictions.

It is clear from the magistrate’s reasons for judgment and the court record that he did in fact take into account that the appellant was a first offender together with his age and the other factors referred to above.

The court has to apply the principles enumerated above with respect to offences of this type and it would seem that an appropriate starting point would be not less than 7 years bearing in mind the serious nature of the armed robbery. Whilst the plea of guilty was entered, it was entered at the last possible moment after all witnesses had been brought to court by the prosecution. The appellant is entitled to a discount but certainly not to a discount of one third that would

be applicable if the plea were entered on the first opportunity. Taking into account the appellant’s age and that this is his first offence, further reduces the penalty that might be imposed. The resultant penalty would be 4 ½ years.

The penalty imposed by the magistrate was 5 years, which clearly is not wrong in principle or manifestly excessive and accordingly the appeal against sentence is dismissed.

JOHN CONNORS
JUDGE

At Lautoka
29 October 2004