Jameer v The State [2005] FJHC 338; HAA0143.2005L (16 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0143 OF 2005L

SHEIK JAMIR
s/o Sheik Meera

v.

THE STATE

Appellant in Person
Mr. S. Qica for the State

Date of Hearing: 16 November 2005
Date of Ruling: 16 November 2005

EXTEMPORE RULING

The appellant on the 13^th September 2004 entered a plea of guilty and was convicted of the following offences:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

SHEIK JAMI s/o Sheik Meera with others on the 13^th day of May 2004 at Nadi in the Western Division robbed ABDUL AZIZ s/o Ahamed Ali of $15.00 cash, eyeglass valued at $190.00, Alcatel mobile phone valued at $329.00 and wallet valued at $10.00 all to the total value of $544.00 and immediately before such robbery did used personnel violence to the said ABDUL AZIZ s/o Ahamed Ali.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

SHEIK JAMIR s/o Sheik Meera with others on the 13^th day of May, 2004 at Nadi in the Western Division, unlawfully and without colour of right but not so as to be guilty of stealing drove away van registration number EF 438 the property of ABDUL AZIZ s/o Ahamed Ali.

The appellant was sentenced by the Learned Magistrate to 7 years imprisonment with respect to the first count and 6 months imprisonment with respect to the second count. The sentences are to be concurrent.

The facts as they appear in the record of the Magistrates Court are that at about midnight, the victim Abdul Aziz aged 47 years old of Kennedy Avenue, Nadi was sitting at a kava shop. An Indian man came to hire his van. When the van arrived, it stopped then 4 masked men came quickly from nearby bush and one of them put kitchen knife on the stomach of the victim, they pulled him out into bushes and taped his hand after putting cloth on his head. His hands were taped to his back. They took the items in charge and put him in the back of the van and drove off. On the road, there was a collision in the back of the carrier. The four left the van and left the victim in injured state and ran away with stolen items. The victim later struggled, freed himself and went to get help and told the police what occurred.

In mitigation, the appellant told the Court that he is a young man of 30 years of age and he is single and supports his mother and father. He is the oldest child in the family.

He says he has served 1 year and 6 months and that he has learnt his lesson and he asked the leniency of the Court.

State Counsel refers the Court to Surend Singh & Others v The State – Cr. App. 079 of 2000 where on appeal Madam Justice Shameem imposed a sentence of 2 years imprisonment for the robbery with violence of a taxi driver, in circumstances not dissimilar to those before the Court.

I am of the opinion that the penalty imposed by the Learned Magistrate was indeed excessive in the circumstances. The appellant pleaded guilty at the first opportunity. It would seem reasonable for the Court to take as a starting point a term of imprisonment of 4 years and to deduct appropriately for the early plea of guilty.

The appellant has prior convictions. One of which in 2001 is for larceny for which he received a suspended sentence and that is certainly an aggravation to the mitigation to which I have referred and in particular, the earlier plea of guilty. In the circumstances therefore it appears to me that an appropriate sentence would be a period of imprisonment of 3 years in lieu of 7 years imposed by the Learned Magistrate for the first count. I see no reason to interfere with the sentence imposed with respect to the second count and accordingly, the appeal is allowed.

The conviction is confirmed. The sentence with respect to the first count is quashed and in lieu thereof the appellant is sentenced to imprisonment for a term of 3 years to date from the date of conviction, that is the 13^th September 2004.

The sentence of 6 months with respect to the second count is confirmed. The sentences are to be served concurrently.

JOHN CONNORS
JUDGE

At Lautoka
16 November 2005