Misioka v The State [2005] FJHC 343; HAA0145.2005L (12 October 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0145 OF 2005L

ALIFERETI MISIOKA (1)
IFEREIMI TUBUNA (2)

v.

THE STATE

Appellant 1 in Person
Appellant 2 in Person
Mr. M. Korovou for the State

Date of Hearing: 12 October 2005
Date of Judgment: 12 October 2005

JUDGMENT ON APPEAL

The appellants were each convicted after trial and sentenced on the 16^th June 2005 by the Learned Magistrate at Sigatoka to an effective sentence of 5 years imprisonment with respect to the following offences:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

ALIFERETI MISIOKA with another on the 6^th day of March, 2004 at Vatukarasa, Sigatoka in the Western Division robbed INTAZ ALI s/o Sattar Ali of one wrist watch valued at $35.00 and $200.00 cash to the total value of $235.00 the properties of the said INTAZ ALI s/o Sattar Ali.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

ALIFERETI MISIOKA with another on the 6^th day of March 2004 at Vatukarasa, Sigatoka in the Western Division unlawfully and without colour of right but not so as to the be guilty of stealing took to their own use taxi registration number DX 717, the property of JOHNNY SYLVESTER s/o Bhagwan Singh.

THIRD COUNT

Statement of Offence

LARCENY: Contrary to section 262 of the Penal Code, Cap. 17.

Particulars of Offence

ALIFERETI MISIOKA with another on the 6^th day of March, 2004 at Vatukarasa, Sigatoka in the Western Division stole one taxi meter of taxi registration number DX 717 valued at $400.00 the property of JOHNNY SILVERSTER s/o Bhagwan Singh.

FOURTH COUNT

Statement of Offence

DRIVING MOTOR VEHICLE WITHOUT DRIVING LICENCE: Contrary to section 56 (1), (3) and (6) of the Land Transport Act 35 of 1998.

Particulars of Offence

ALIFERETI MISIOKA on the 6^th day of March, 2004 at Sigatoka in the Western Division drove a taxi registration number DX 717 on Queens Road, Korotogo without being the holder of a valid driving licence in respect of the said motor vehicle.

FIFTH COUNT

Statement of Offence

DRIVING MOTOR VEHICLE IN CONTRAVENTION OF THIRD PARTY POLICY INSURANCE: Contrary to section 4(1) (2) and (3) of Motor Vehicle Third Party Policy Insurance Act Cap. 177.

Particulars of Offence

ALIFERETI MISIOKA on the 6^th day of March 2004 at Sigatoka in the Western Division drove a taxi registration number DX 717 on Queens Road, Korotogo, when not covered under the insurance of Third Party as required by the provisions of Motor Vehicle Third Party Policy Act Cap. 177.

SIXTH COUNT

Statement of Offence

CARELESS DRIVING: Contrary to section 99 (1) and 114 (1) of the Lands Transport Act 35 of 1998.

Particulars of Offence

ALIFERETI MISIOKA on the 6^th day of March 2004 at Sigatoka in the Western Division drove a taxi registration number DX 717 on Queens Road, Korotogo, without due care and attention.

The facts as found by the Magistrate after trial were that both appellants and another were passengers in taxi registration no. DX 717 of one Intaz Ali and commuted to Namada and Vatukarasa village respectively on the 6^th March 2004 after 8.00pm. On the way, they and another accomplice planned to rob Mr. Ali and from Vatukarasa, Mr. Ali was forced to drive through Balenabelo Road. There in the middle of nowhere, you all act in concert to rob Mr. Ali by using force, stealing his wallet containing $200.00, his $35.00 wristwatch and his taxi. When he ran away he was chased, caught, assaulted and dragged into the car and was made to sit at the back seat then Mr. Misioka drove a taxi unlawfully and without a driving licence and contravening the third party insurance policy.

At Korotogo, when accosted by the police roadblock, the taxi went off the road and you were both arrested. The taxi meter valued at $450.00 was noted missing, believed to be stolen. Subsequently, you were both charged with robbery with violence and Mr. Misioka for the other offences and both pleaded not guilty and as I have said you have been found guilty after the trial by the Learned Magistrate.

Both now appeal against the sentence imposed by the Learned Magistrate which is an effective sentence of 5 years imprisonment. As is noted by the Learned Magistrate in his sentencing remarks, maximum sentence for the dominant offence robbery with violence is life imprisonment. Your accomplice, Kolinio Qoro, who was dealt with after entering a plea of guilty was sentenced to 4 years imprisonment.

You both submit in mitigation the dominant role you have to play in the care of your families. It is regrettable that you did not consider that obligation prior to the commission of these offences and not now.

It is submitted that there should be a comparative sentence and as I have said, the sentence imposed upon with the co-accused is 4 years imprisonment and that sentence was confirmed by the Court of Appeal. The Fiji Court of Appeal has set forth in some detail in Raymond Sikeli Singh v The State – Cr. App. No. AAU0008 of 2000, the tariff for offences of robbery with violence and whilst the tariffs cover a very large range, they are in fact broken up into categories and the Court said:

“The starting point for serious armed robbery of commercial premises start at 6 or more years whether there is a greater risk of harm or actual violence is used, the starting point was said to be 8 years or more. The court noted that in the case of very serious armed robberies, the starting point of about 10 years will be appropriate.”

The Learned Magistrate in sentencing both of you, uses a starting point of a term of 6 years to which he added the aggravating factors and deducted the mitigation. The Learned Magistrate in his sentencing remarks erred, in adding a year for the not guilty plea and for wasting the Court’s time.

The Learned Magistrate has deducted 2 years for the hardship on your families and took account of the 4 year sentence imposed upon the co-accused after entering a plea of guilty and as I have said, he then imposed a resultant term of 5 years imprisonment. Whilst the reasoning of the Learned Magistrate is indeed incorrect, the resultant sentence on the dominant count of 5 years imprisonment is most certainly within the range.

As all sentences are to be served concurrently and the remaining sentences are a maximum of 12 months, there is nothing that has been placed before me to suggest that any of those sentences are wrong in principle or manifestly excessive. In so far as the first count, robbery with violence is concerned, I have found that the sentence of 5 years imprisonment is indeed well within the range and certainly not wrong in principle or manifestly excessive and accordingly, the appeal is dismissed.

JOHN CONNORS
JUDGE

At Lautoka
12 October 2005