Tukana v The State [2005] FJHC 46; HAA0146J.2004S (2 March 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0146 of 2004S

Between:

SAKIUSA TUKANA
Appellant

And:

THE STATE
Respondent

Hearing: 25th February 2005
Judgment: 2nd March 2005

Counsel: Appellant in Person
Ms V. Lidise for State

JUDGMENT

This is an appeal against sentence. The Appellant was charged as follows:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

SAIRUSI KORODRAU and SAKIUSA TUKANA, on the 14th day of February 2003, Suva, in the Central Division, robbed MOHAMMED JAHEED s/o Ramzam of $20.00 cash, and immediately before the time of such robbery, did use personal violence to the said MOHAMMED JAHEED s/o Mohammed Ramzam.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

SAIRUSI KORODRAU and SAKIUSA TUKANA, on the 14th day of February 2003, Suva, in the Central Division, unlawfully and without colour of right but not as to be guilty of stealing, took to his own use Taxi Registration Number DJ 616, the property of MOHAMMED JAHEED s/o Mohammed Ramzam.

He pleaded guilty in the Suva Magistrates’ Court on the 17th of February 2003. He and his co-accused applied for legal aid but it was refused. They chose to proceed unrepresented. The matter was adjourned to the 25th of February 2003 for facts to be outlined.

The facts were that the victim, a taxi driver, was driving his taxi, when the Appellant and his co-accused hired it to take them to Ratu Sukuna Road. The Appellant used a kitchen knife to threaten the victim. The co-accused then grabbed him and put him in the back seat. He then drove to Veisari. Both the Appellant and the co-accused took $20 from the victim’s pocket and tied him up using his own shoe laces. They dumped the driver at Veisari and drove away.

The victim later untied himself and reported the matter to the police. A search for the taxi was carried out. The taxi was seen at Shell Service Station. The police chased it and the Appellant and the co-accused were arrested 100 metres from the taxi. Both were drunk. Under caution, they admitted the offence.

The Appellant admitted these facts and a number of previous convictions, which included 2 for robbery with violence. In mitigation he said that he met the co-accused after a long time and drank with him because of the co-accused’s emotional problems. He said it was the co-accused’s idea to steal the vehicle.

Both accused were then bound over to appear for sentence on the 15th of August. A curfew was also imposed. The accused however absconded and bench warrants were issued. The 1st Accused finally appeared before Ms Kaimacuata on the 22nd of December 2003. He was sentenced to 6 months imprisonment on each of the four counts, including the offence of robbery with violence, and the total term of 24 months was suspended for 3 years. No reasons were given for such a drastic departure from the tariff, or for the suspended sentence. Indeed there are no sentencing remarks at all.

The Appellant was finally brought to court on bench warrant on the 4th of May 2004, before Ms Lomaiviti. The charge was amended, and plea re-taken. He pleaded guilty again. The facts were outlined again and the Appellant mitigated again. He said he was 33 years old, and was married with one child. He worked as a casual labourer, and earned $80 a week. He expressed remorse.

Sentence was imposed on the 1st of June 2004. The learned Magistrate carefully set out the facts, the aggravating and mitigating factors. She imposed a sentence of 3½ years imprisonment. Although the sentence is 6 months lower than the normal tariff for robbery with violence, the reasons for the sentence imposed are clearly set out. On Count 2, she imposed 6 months to be served concurrent to the term imposed on Count 1.

In the circumstances I cannot accede to the Appellant’s request for a suspended sentence. He is not a young first offender who committed a “marginal” (for want of a better word) robbery with violence with no aggravating factors. This was a planned and serious robbery. Two mature adult men terrorised and tied up a taxi driver who is an often-targetted profession. His previous convictions show me that he has not learnt from past mistakes. There were no reasons for any radical departure from the normal tariff for robbery with violence.

I can understand the Appellant’s sense of injustice that his co-accused received a sentence which appears to be quite different from his. Indeed, one of the reasons why the High Court and Court of Appeal have taken the trouble to deliver guideline sentencing judgments, is to remove the sense of injustice created by lack of uniformity in sentences. If all courts follow the guidelines, the result will be greater uniformity, and it is hoped less dissatisfaction with sentences imposed in all the courts.

In this case, State counsel informed me that because of the disparity in the sentences imposed in the case of the two accused, she would recommend to the DPP, an appeal against leniency of sentence for the 1st Accused. That would appear to be the most logical course of action. Certainly, the answer cannot be to reduce a sentence which is correct in principle to conform with one which may not be.

For these reasons, this appeal against sentence is dismissed.

Nazhat Shameem
JUDGE

At Suva
2nd March 2005