Serukalou v The State [2005] FJHC 60; HAA0137J.2004S (23 March 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0137 of 2004S

Between:

SEKOVE SERUKALOU
Appellant

And:

THE STATE
Respondent

Hearing: 18th March 2005
Judgment: 23rd March 2005

Counsel: Appellant in Person
Ms V. Lidise for State

JUDGMENT

The Appellant appeals a 2 year term of imprisonment imposed on him for the offence of robbery with violence and unlawful use of motor vehicle. The charges were as follows:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

SEKOVE SERUKALOU on the 8th day of September, 2004 at Nasinu in the Central Division robbed SUNIL DUTT SINGH s/o Jagat Singh of $40.00 cash and immediately before such robbery did use personal violence to SUNIL DUTT SINGH s/o Jagat Singh.

SECOND COUNT

Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to Section 292 of the Penal Code Act 17.

Particulars of Offence

SEKOVE SERUKALOU on the 8th day of September 2004 at Nasinu in the Central Division unlawfully and without the colour of right but not so to be guilty of stealing took for his own use a taxi registration number LT4210 the property of SUNIL DUTT SINGH s/o Jagat Singh.

The matter was first listed on the 28th of September 2004. The Appellant waived his right to counsel and pleaded guilty on both counts.

The facts were that on the 8th of September 2004, the victim, a taxi-driver, was driving along Ratu Dovi Road, when the Appellant with another man, stopped him. They asked to be dropped at Maqbool Road. On the way they asked him to stop, telling him they needed to collect money to pay the fare. The Appellant, and his accomplice, then got out of the taxi, punched the victim several times, pulled him out of the vehicle, took $40 from him and left in the taxi. The taxi was later found along Maqbool Road with no one inside it. The police later located the Appellant and interviewed him under caution. The Appellant admitted the offences and was charged.

These facts were admitted by the Appellant. He is a 19 year old first offender. He said nothing in mitigation.

The learned Magistrate, in his sentencing remarks considered the tariff for robbery with violence cases, the guilty plea and his assistance to the police in relation to the name of his accomplice. He started at 4 years imprisonment and gave him 2 years discount for the mitigating factors. He sentenced him to 2 years imprisonment on Count 1, and 6 months on Count 2, to be served concurrently.

The Appellant appeals against this sentence, saying that he had been given no time to mitigate, that no weight was put on his youth and good character, that his father is in prison and he now takes care of his mother, grandmother and younger siblings, that he used no violence himself and that only $40 was taken.

The State opposes the appeal saying that despite the Appellant’s youth and good character, a custodial sentence for robbery with violence was inevitable.

The Appellant raised grounds of appeal against conviction as well. They were that he was not given the services of an interpreter, that he was not told of his right to counsel and that he was thereby prejudiced.

However, the record shows that the Appellant was given his rights, that he understood the proceedings and that the proceedings were conducted fairly. It is correct that he chose not to mitigate. Certainly, where the courts are faced with young first offenders, particular care should be exercised to ensure that the accused remains silent out of choice and not because he is intimidated by the proceedings. At the appeal hearing, he was forthcoming with his submissions, but only after I asked questions about his personal circumstances from the bench. Although, such questioning might have led to some assistance in mitigation, I am persuaded that the sentence imposed would have been the same. As such, I do not consider that he was prejudiced by his failure to mitigate.

In relation to sentence, the learned Magistrate started at the lowest end of the tariff, 4 years imprisonment. He then gave substantial discount for the guilty plea. Although he did not mention the Appellant’s good character and youth, the sentence of 2 years imprisonment for a robbery with violence on a taxi driver is not harsh or excessive. It is well below the tariff. Despite the Appellant’s youth and good character, there was no escaping a prison term.

For these reasons the appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
23rd March 2005