Tikoinaviti v The State [2005] FJHC 449; HAA0065J.2005S (21 October 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0065 & 069 of 2005S

Between:

PENIJAMINI TIKOINAVITI
Appellant

And:

THE STATE
Respondent

Hearing: 14th October 2005
Judgment: 21st October 2005

Counsel: Appellant in Person
Ms K. Bavou for State

JUDGMENT

This is an appeal against sentence. The Appellant was sentenced to a total of 2 years imprisonment for the offence of robbery with violence and escaping from lawful custody, to be served consecutive to the 2 year term he was serving since August 2004. There are two separate appeals in this case, but because the Appellant appeals against his total sentence, I deal with both appeals together.

In HAA0065.2005 he was charged with robbery with violence. The charge reads as follows:

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(b) of the Penal Code Act 17.

Particulars of Offence

PENIJAMINI TUINAVITI on the 20^th day of November, 2004 at Suva in the Central Division, robbed BRIJ SUBHADAS s/o John Subhadas of one alcatel mobile phone valued $250.00, the property of the said BRIJ SUBHADAS s/o John Subhadas and immediately after such robbery, threatened to use personal violence to the said BRIJ SUBHADAS s/o John Subhadas.

Although the charge was filed on 7^th January 2005, plea was not taken until 11^th March 2005. The Appellant pleaded guilty. The facts were that the Appellant robbed Brij Subhadas of his mobile phone and threatened him with a screwdriver. He sold the mobile phone to buy alcohol. These facts were admitted. The Appellant has 8 previous convictions, all for robbery with violence. They were all committed between December 2001 and August 2004. He was sentenced to a suspended sentence of 18 months on the 4^th of May 2004. He re-offended within the operational period. He was sentenced, on the 9^th of August 2004 to 6 months imprisonment for robbery, and the 18 month suspended sentence was activated to run consecutive to the 6 month term.

In mitigation, the Appellant expressed remorse, said his parents were old and asked for leniency. In sentencing him, the learned Magistrate said that whilst serving his term of imprisonment, imposed on the 9^th of August 2004, he escaped and committed the offence of robbery with violence while on the run. She said that he had become a nuisance to society and imposed a term of 18 months imprisonment.

In HAA0069 of 2005, the charge read as follows:

Statement of Offence

ESCAPING FROM LAWFUL CUSTODY: Contrary to Section 138 of the Penal Code Act 17.

Particulars of Offence

PENIJAMINI TUINAVITI on the 27^th day of September 2004 at Suva in the Central Division escaped from lawful custody of Prison Officer Corporal 623 Umardayal.

The charge was filed on the 6^th of December 2004 after the Appellant had been at liberty for 2½ months. He pleaded guilty to the charge on the 15^th of February. The facts were that he, with 3 other prisoners escaped from Korovou Prison by cutting the cell bars. He was arrested by a police officer, in the Suva Market on the 1^st of December 2004.

In mitigation the Appellant asked for leniency. On the 28^th of April, he was sentenced to 6 months imprisonment. The two sentences are to run consecutive to each other, so that in total the Appellant is to serve 24 months imprisonment. It is consecutive to the 2 year term he was then serving. His total term computes to 4 years imprisonment from August 2004. In his written and oral submissions in court, the Appellant made it clear that his real quarrel is with the consecutive sentences. He said that the learned Magistrate had failed to give any weight to the guilty pleas and remorse.

State counsel said that the 6 month term for escaping from lawful custody was within the tariff and was right in principle. She said that the 18 month term for robbery was far below the tariff for robbery with violence and that the total term of 4 years imprisonment (for three offences of robbery and one for escaping) was still at the lowest end of the tariff for robbery with violence.

The Appellant was fortunate to receive an 18 month term of imprisonment for robbery with violence. Although this was a case of street “mugging” as opposed to a home invasion robbery, it was nevertheless a serious offence. A starting point of 4 years imprisonment would have been appropriate. A reduction of 2 years for the guilty plea, remorse and family circumstances would have been reasonable. An increase by one year would have reflected the non-recovery of the mobile phone and the use of a weapon to threaten the complainant. A 3 year term would have been correct in principle. The sentence below the tariff could have been explained by the lack of actual violence, the absence of any injury and the value of the phone.

The 18 month term imposed is so far below the term which should have been imposed, that I can only assume that the learned Magistrate passed a shorter term because she was conscious of the totality principle. If this is so, then she must have concluded that a four year term for three incidents of robbery, and one of escaping was proportionate to the nature of the offending.

If anything, she erred on the side of leniency. This Appellant appears to have embarked on a course of conduct, since 2001, which demonstrates a total disrespect for other people and their property. Members of the public have the right to walk around Suva freely without fear of assault, theft and intimidation.

Similarly, in relation to the 6 month term imposed for escaping, the Appellant escaped with three other men. He remained at large for 2½ months and put the prisons service and the police to great expense and inconvenience. The 6 month term is within the tariff and is correct in principle.

For these reasons this appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
21st October 2005