State v Tora [2005] FJHC 279; HAA0114.2005 (5 December 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0114 OF 2005L

THE STATE

v.

JOSEVATA TORA

Mr. S. Qica for the State
Respondent in Person

Date of Hearing: 2 December 2005
Date of Ruling: 2 December 2005

EX TEMPORE RULING ON APPEAL

The State appeals against the sentence imposed on the respondent by the Learned Magistrate in Ba on the 22^nd April 2005 with respect to the offence of Robbery with Violence.

The respondent was also convicted and sentenced on that same day for attempted rape.

The facts as they were presented the Learned Magistrate were that on the 19^th April 2005 at about 2300 hours the respondent attempted to rape the victim, a 59 year old woman and to rob her of a transistor radio valued at $20.00, a ladies wristwatch valued at $100.00 and a purse valued at $5.00 all to the total value of $125.00.

The victim was at the time sleeping alone at her house. She not being married. Whilst she was sleeping the respondent entered the house by removing 2 louvre blades from the kitchen. He then went to her bedroom, pulled the mosquito net, at that time victim woke up and then asked to have sex with her but she refused. She started to yell. The respondent then covered her mouth with his hand. She struggled. Whilst struggling the respondent threw punches to the victim’s face and mouth which caused her to become weak. The respondent then pulled out the top, skirt and panty of the victim and started fondling with her breast and vagina. He then took out his erect penis and told the victim to hold it. She refused and she then stopped breathing or held her breath pretending to be dead. The respondent then touched the victim’s chest and nose and could not feel any pulse so he left her. Before he left the house, he stole the items referred to.

As a result of the assault on the victim by the respondent, she suffered a dislocated jaw, 3cm cut on left and right chin and swollen left eye.

The Learned Magistrate imposed a sentence with respect to each offence of 9 months imprisonment with the sentences to be served concurrently.

The State in support of its appeal submits that the authorities indicate that an appropriate tariff for robbery with violence of the home invasion type is 6 to 8 years and that of course appropriate adjustments are to be made to that tariff range for aggravating and mitigating factors. In support of their submission the State relies upon Waisake Matahau Uluikadavu v The State – Cr. App. HAA0035 of 2004 where Mr. Justice Winter was dealing with a home invasion where after considering the authorities set out that the starting point was in the range of 6 to 8 years. He was there dealing with a 67 year old victim living alone at night, an early plea of guilty, a first offender and no weapons. A situation not dissimilar in the present and His Lordship concluded that the sentence of 6 years was appropriate.

The State also refers the Court to the decision of Madam Justice Shameem in Isikeli Nakato v The State – Cr. App. HAA0066 of 2005S where Her Ladyship set forth the tariff for home invasion type robberies of 6 to 8 years. The appellant in that matter described himself as the getaway driver in person whom took no greater involvement in the commission of the offences that night and Her Ladyship dismissed the appeal confirming the sentence of the Learned Magistrate to 6 years imprisonment.

The respondent submits as he did to the Learned Magistrate that he is the father of 2 children, living in a settlement in Ba and that his wife has difficulties coping with the 2 children by herself. His submission is supported by a written submission from his wife who seeks that he be treated leniently, who seeks his return to the family to enable them to survive.

The respondent pleaded guilty before the Magistrate at the first opportunity and the Learned Magistrate took into account that early plea and his prior good behaviour. It is however not possible, based on the authorities, to take as a starting point anything less than the term of 6 years. Whilst there are significant mitigating factors in favour of the respondent in particular, his early plea and his prior good record, there are also very significant aggravating factors including the fact that the home invasion took place at night, the victim was assaulted and no property or goods were recovered.

When one takes account of the aggravating and mitigating factors and the authorities to which I have referred, I am of the opinion that an appropriate resultant sentence is one of 6 years imprisonment and accordingly, the Orders of the Court will be:

1. The appeal is allowed.
   
2. Convictions are confirmed.
   
3. The sentence with respect to robbery with violence is quashed and in lieu thereof the respondent is sentenced to 6 years imprisonment.
   
4. The sentence with respect to attempted rape is confirmed.
   
5. Sentences are to be concurrent and to date from the 22^nd April 2005.
   

JOHN CONNORS
JUDGE

At Lautoka
2 December 2005