Tubuli v The State [2005] FJHC 474; HAA104J.2005S (7 October 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0104 of 2005S

Between:

PENIONI TUBULI
Appellant

And:

THE STATE
Respondent

Hearing: 30^th September 2005
Judgment: 7^th October 2005

Counsel: Appellant in Person
Mr. D. Prasad for State

JUDGMENT

This is an appeal against sentence. The Appellant was sentenced to 5 years imprisonment. He appeals against this sentence on the grounds that his plea of guilty was ignored, there was no personal violence and the sentence is harsh and excessive.

The charge read as follows:

Statement of Offence

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

Particulars of Offence

PENIONI TUBULI and others on the 3^rd day of July 2005 at Suva in the Central Division robbed BRAD SMITH of his wallet valued at $50.00 with cash $314.00 to the total value of $364.00 and at the such time of robbery did use personal violence to the said BRAD SMITH.

The case was first called on the 5^th of July 2005. The Appellant was told of his right to counsel, and he waived it. He pleaded guilty. The facts were that on the 3^rd of July at 11am the complainant, a tourist from New Zealand, was walking along the market canteens with his girlfriend. The Appellant, who with four other youths, approached the complainant and asked him if he was interested in buying recharge cards. He took him to an isolated spot along Usher Street. He then grabbed him from behind by holding his neck and took out his wallet from his trousers. The Appellant and the other youths then fled the scene. The complainant stopped a police car and the police arrested the Appellant near MacDonalds. He was searched ant $314.00 was recovered. Under caution, the Appellant admitted the offence.

These facts were admitted as were 6 previous convictions, one of which was for robbery with violence. In mitigation he said that he was 22 years old, lived at Laqere, was single and was employed as a casual labourer at the Ports Authority. He asked for a non-custodial sentence. He said he committed the offence as a result of peer pressure.

The learned Magistrate’s record then reads:

“Severely admonished. Sentenced to 5 years imprisonment. Property to be returned to the owner.”

In his written submissions to the court, the Appellant said that although the sentence was within the tariff, inadequate weight was put on his mitigation. He further says that he is unlikely to learn anything in prison, and that he has now learnt the error of his ways.

The State opposes the appeal, saying that the sentence is right in principle. I agree. It is unfortunate that the learned Magistrate’s brief sentencing remarks do not indicate the starting point, nor the weight he placed on mitigation and aggravating factors. The transparency of the sentencing process reinforces the justice of it. The sentencing process is not arbitrary. It is achieved after the application of sentencing principles, and the accused and the public are entitled to understand that process.

In this case, the tariff was 4 to 7 years. Because this was a borderline larceny from person case, a starting point of 4 years imprisonment would have been appropriate. A scaling up to 6 years, would reflect the luring away of the complainant, the force used on him by the holding of his neck, the fact that the offence was committed by a gang of youths, and the value of the money stolen. To reflect the guilty plea, remorse, and recovery of the money, I would scale down by 12 to 18 months. The 5 year term imposed is therefore correct in principle.

There was no question of a non-custodial sentence. The Appellant has become a habitual offender and the committing of robbery on tourists and residents alike has contributed to a sense of shame in our society that our young people behave in this way.

This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
7th October 2005