Dean v The State [2005] FJHC 29; HAA0012J.2005S (18 February 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 012 of 2005S

Between:

FAME IMRAN DEAN
Appellant

And:

THE STATE
Respondent

Hearing: 11th February 2005
Judgment: 18th February 2005

Counsel: Mr. H.A. Shah
Mr. D. Gounder for State

JUDGMENT

This is an appeal against conviction and sentence. The Appellant, with three other men was charged as follows:

First Count

Statement of Offence

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

Particulars of Offence

RAVINESH KUMAR s/o Rajesh Kumar, FAME IMRAN DEAN s/o Fazal Dean, RAVINESH KRISHNA s/o Raj Goppal and FRANCIS RONALD s/o Krishna Naidu on the 23rd day of February, 2003 at Maharaj Place, Lautoka in the Western Division robbed VINESH KUMAR s/o Muni Ram of cash $52.80, Stereo with Boombox valued at $1050.00 to the total value of $1,02.80 and immediately before and after such robbery did use personal violence on the said VINESH KUMAR s/o Muni Ram.

Second Count

Statement of Offence

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

Particulars of Offence

RAVINESH KUMAR s/o Rajesh Kumar, FAME IMRAN DEAN s/o Fazal Dean, RAVINESH KRISHNA s/o Raj Gopal and FRANCIS RONALD s/o Krishna Naidu, on the 23rd day of February 2003, at Maharaj Place, Lautoka in the Western Division, unlawfully and without colour of right but not so as to be guilty of stealing took to their own use motor vehicle registration number DY 787.

Third Count

Statement of Offence

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

Particulars of Offence

RAVINESH KUMAR s/o Rajesh Kumar, FAME IMRAN DEAN s/o Fazal Dean, RAVINESH KRISHNA s/o Raj Gopal and FRANCIS RONALD s/o Krishna Naidu on the 23rd day of February, 2003 at Maharaj Place, Lautoka in the Western Division, wrongfully confined VINESH KUMAR s/o Muni Ram.

The charges were laid in the Lautoka Magistrates’ Court. All four accused persons pleaded not guilty on the 5th of March 2003. On the 2nd of April 2003, the 1st Accused and 4th Accused pleaded guilty on Counts 2 and 3. On the 6th of February 2004, the charges were amended and pleas taken afresh. This time the 1st, 3rd and 4th accused pleaded guilty on Count 1 and the 4th accused pleaded guilty on Count 2 and Count 3.

On the 23rd of March 2004, the prosecution informed the court that the 1st accused was now deceased. The trial finally proceeded on the 6th of August 2004.

The complainant was Vinesh Kumar, a carrier driver. On the 23rd of February 2003, he was driving his 7-seat carrier in Lautoka town when at 7pm the now deceased 1st accused hired his van. He took the witness and his carrier to M.T. Khan Road. There he met with three Indian boys. He said that they were in the dock and in the courtroom. These boys then asked him to go to Maharaj’s Place. The Appellant sat in the front seat. The other two were in the back seat. At Maharaj’s Place, they asked him to stop at the roundabout, the men at the back got off and went away. After a while they got in again. The Appellant then put a penknife to the driver’s neck. The men at the back held him from the back. Together they tied his hands, put masking tape over his face, and pulled him into the back of the van. His legs were also tied together with rope. They then drove the van and picked up some passengers. They then took some things out of the van. They then drove for some distance, and stopped in Nadi when they got out and ran away. The driver struggled to untie his hands and got out of the van. He stopped an oncoming vehicle. The occupants of it took off the masking tape from his face, and untied the ropes. They took him to the Nadi Police Post and then to the Nadi Police Station. He said that he found the radio, a wrist watch, wallet, some cash, and a speaker missing from the car. Of these items, some were recovered. In answer to questions put by the Court, he said he had been assaulted on his face, side, limbs, and shoulder and that the assault had been with fists. He said he received injuries but there was no medical report because of the unavailability of a doctor in hospital.

Under cross-examination he said that although he knew that the men were holding him, he did not know which of them had taken his wallet, or put tape on his face. In re-examination, the stolen boom box or speaker was identified as his, as well as mats from the car, rope with which he was tied, a flip flop and a wheel spanner. They were identified by the complainant who said that he had gone with the police to recover the exhibits from the 4th accused who knew where the boom box was.

The second prosecution witness one Alfoz Rizwan Ali, a market vendor in Nadi who said that on the 24th of February 2003 at 5pm, the 4th accused known as “Devita” gave him the boom box as security for a $40 loan from him. After 4 days, the police came with the 4th accused and seized it.

The next witness was Detective Constable Sakuna, who was the investigating officer. He interviewed the 2nd and 3rd accused, (the Appellant and Ravinesh Krishna) and said that the interviews were given of their own free will. Under cross-examination, it was suggested to him by defence counsel that he had obtained the Appellant’s interview unfairly and that it was not a voluntary statement. The witness denied this.

Because many allegations were made against one Constable Haniff, he was called as the next witness. He denied assaulting or putting any pressure on the Appellant.

The Appellant gave evidence in relation to the interview statement. He said that before his statement was recorded, he was orally interviewed by DC Sakuna and DC Haniff, and assaulted by them on his head, back, and hips. The learned Magistrate, ruled the statement inadmissible, for reasons she later explained in her judgment. She then found a case to answer on the remaining evidence. The Appellant then made a short unsworn statement, saying that the 1st Accused (now deceased) was a friend of his, and he had helped him to elope with a girl. He said he had done nothing to the driver of the carrier.

The learned Magistrate then delivered judgment. She directed herself correctly on the law on the admissibility of confessions, and found that she had a reasonable doubt that the records of interview had been given. She excluded the confession.

She said that she accepted the complainant’s evidence and found that he had been assaulted and robbed. She said that the accused did not dispute participation but that he said that there was no evidence of direct participation in the assault or the theft. She said that under the principle of joint enterprise and common purpose, each of the accused was guilty. She said that the Appellant had participated in the tying up, blindfolding and assaulting, and that in the long drive that night, he and the others made no attempt to leave the van or free the complainant. She said she was satisfied beyond doubt that the Appellant and his co-accused had participated in the assault of, and the confinement of, the complainant, and in the theft of the items from the van. She found each guilty as charged. She sentenced the Appellant to a total of 2½ years imprisonment.

The appeal

The grounds of appeal are that:

Appeal against conviction

1. That the learned Magistrate erred in law and in fact in convicting the Appellant in the absence of any credible evidence;
   
2. That the learned Magistrate erred in law and in fact by misdirecting herself as to the requisite mens rea in respect of each of the three counts.
   
3. That the conviction is unsafe.
   

Appeal against sentence

4. That the sentence is manifestly harsh and excessive in all the circumstances of the case;
   
5. That the learned Magistrate misdirected herself both in law and in fact in sentencing the Appellant.
   

The first ground of appeal can be disposed of very quickly. The offence of robbery with violence, requires proof of 1) robbery; 2) of a person; 3) at the time of or immediately before or immediately after; 4) uses or threatens to use violence to any person.

Under the principle of joint enterprise, each member of a group which participates in any such robbery is guilty of the offence if he agreed to an unlawful common purpose, and the offence charged was a probable consequence of the joint unlawful purpose.

The evidence showed that all the accused got onto the van, that some of them tied up the complainant and unlawfully confined him for some hours in the van, that some of them assaulted him during the confinement, and that several items were missing from the van when he next saw his van. There is therefore evidence of each element of the offence, the assault, the theft and the connection between the two. There is a sufficiently close connection between the assault and the theft to satisfy the requirements of section 293.

Counsel for the Appellant submitted that there was no connection between the assault and the robbery. I do not agree. Not only did the complainant say (at page 19): “they took some things out of my van” but the stolen items were later recovered, at the suggestion of the Appellant, with the 4th accused. Clearly the Appellant knew where the items were, and the 4th accused certainly had the boom box which he offered to Alfoz Rizwan Ali for a loan of $40. There was clearly a connection between the assault and the robbery. The learned Magistrate was entitled to conclude, as she did, that the Appellant, by his own conduct, showed a voluntary willingness to participate in the joint enterprise. Even if he never laid a hand on the complainant, she was entitled to come to this conclusion.

The second ground of appeal is that there was no evidence of mens rea. However, section 293 of the Penal Code creates an offence only of basic intent, that is of intent to do the acts which constitute the offence. The complainant’s evidence was that each of the accused got onto his van and took it over after confining him. He also said that they tied him up and assaulted him and took his property. The learned Magistrate found that the Appellant was a willing participant in the robbery. She was entitled to draw this conclusion and there was no need to look for further mens rea.

The appeal against conviction is dismissed.

Sentence

On count 1, the learned Magistrate sentenced the Appellant to 2½ years imprisonment, on Count 2 to 4 months imprisonment, and on Count 3 to 9 months imprisonment. All sentences were to be served concurrently.

Counsel for the Appellant says that this sentence is harsh and excessive because of the lack of evidence of injuries and the Appellant’s good character. He referred to the case of Kitione Vuataki v. The State HBM0044 of 1997 and Suren Singh and Others v. State Crim. App. HAA0079 of 2000.

The former case is not directly relevant because it is a case of obstructing a police officer. The latter case is a case of robbery with violence in respect of a group of first offenders who robbed a taxi driver of personal items to the total value of $847.50. They all received suspended sentences.

However, Suren Singh is not comparable to this case. There was evidence of sustained violence and of resulting injuries in this case, which the learned Magistrate accepted. There was evidence of planning and a knife, rope and masking tape were used. The complainant suffered his fate for several hours. Further only some of the property was recovered.

The learned Magistrate started at 3 years imprisonment. Given the tariff for robbery with violence, of 4 to 7 years, this was very fair to the Appellant. She gave considerable discount (18 months) for previous good character, but there was no other compelling mitigating factor. The resulting sentence of 2½ years imprisonment is well below the tariff, and is hardly harsh or excessive. Similarly the sentences on the other counts are not wrong in principle.

For these reasons, the appeal against sentence is dismissed.

Conclusion

This appeal is dismissed. The Appellant who is on bail must now serve his remaining term of imprisonment.

Nazhat Shameem
JUDGE

At Suva
18th February 2005