Rogo v The State [2005] FJHC 81; HAA0119.2004 (21 January 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA0119 OF 2004

BETWEEN:

ALIPATE ROGO
Appellant

AND:

STATE
Respondent

Counsel: Mr. A. Vakaloloma – for Appellant
Ms P. Madanavosa – for State

Hearing: 12th January, 2005
Judgment: 21st January, 2005

JUDGMENT

Background

The appellant was charged with an offence of robbery with violence contrary to Section 293(1)(B) of the Penal Code.

The matter proceeded to trial. The accused was found guilty and convicted. He was sentenced to 6 years imprisonment.

The facts are that on the 21st of December, 2001 the accused and three others hired the victim’s taxi. During the journey the victim was overcome and assaulted. He was punched, kicked and stomped on. He was later thrown out of the taxi. The robbers stole his wristwatch, eyeglasses and some cash all to the value of $215.00. As a result of the assaults during the robbery the victim suffered extensive facial injuries and he was also rendered unconscious.

The Appeal

The appeal as filed was against both conviction and sentence. In his grounds the appellant claims:

1. That the learned Magistrate failed to advise him of his right to legal counsel before and during the trial.
   
2. That the learned Magistrate failed to take into consideration the fact that he was unrepresented at sentence.
   
3. A general ground that the sentence is harsh and excessive.
   

At his appeal the appellant was supported by counsel who provided comprehensive and helpful submissions. Counsel advised that the appeal against conviction was abandoned. That was an appropriate concession to make as clearly the appellant was informed of his rights to counsel and this was noted in the court record. Further, it is evident from the record that the appellant was well able to represent himself and was not prejudiced by his election to proceed without legal assistance.

As far as the sentence appeal is concerned counsel primarily relied on a submission that the sentence was harsh and excessive.

He cited a number of decisions. By reference to the decisions of Raymond Sikeli Singh, Criminal Appeal No. AAU0008 of 2000S, Peni Raiwalui v The State, Criminal Appeal No. HAA0030 of 2003S and Nur Ali Junior v The State, Criminal Appeal No. HAA0039 of 2003S, counsel sought to convince me that these authorities indicated a sentence of 5 years imprisonment was appropriate.

In response the State referred me to the following decisions, Ilaisa Sousou Cava v The State, HAC0007 of 2000S and The State v Charles Marvick, HAC0027-028 of 2004 and my earlier decision of Vilikesa Koroivuata v The State, Criminal Appeal HAA0064 of 2004S.

The State argued that in fact the starting point for this offending was 7 years and that it was quite within the sentencing discretion of the learned Magistrate to impose a sentence of 6 years imprisonment.

Decision

In other sentencing appeals I have expressed the view that this Court should not interfere with the sentencing discretion exercised by a learned Magistrate unless it was manifestly wrong. That phrase simply means was there a clear error of law, error of sentencing principle or an unjust total term of imprisonment imposed.

It is well settled law that this Court can only exercise its discretion to reduce a sentence if it was harsh and excessive. That phrase requires an appeal court to make a conservative comparison of the subject term with the range of appropriate penalties to see if the term under appeal was completely unreasonable. That high threshold test is set to prevent arbitrary appellate inference with another judge’s exercise of sentencing discretion.

In every case having considered the appropriate sentencing principles the appeal Judge has finally to stand back and ask “am I only motivated to fiddle with this sentence and apply a small reduction of a matter of months or a small percentage of the total term imposed”. If that is so it will usually be right to be guided accordingly as it strongly indicates the appeal court is not satisfied that the original term was harsh or excessive and the original sentence should be left alone.

Fiddling with a sentence risks the satisfaction of personal preference over the need for consistency and respect for the exercise of judicial discretion in sentencing. Fiddling with a sentence creates uncertainty and it can weaken an otherwise consistent and trustworthy sentencing process. This uncertainty risks a public loss of faith in the due administration of criminal justice. The rule of law is readily challenged by inconsistent sentencing.

I have already expressed the view in Koroivuata (supra) that taxi driver robberies require harsh deterrent sentences. This appears to be the only means by which these otherwise defenceless professional drivers can receive some measure of protection while they serve the community and provide a cheap vital link in short and medium haul transport.

My sister Justice Shameem and Brother Justice Gates have indicated in Cava (supra) and Marvick (supra) that violent robberies causing injury will normally find a sentence within the range of 5 to 8 years.

The only mitigation might be where the offender has no previous convictions has pleaded guilty and expressed remorse for his offending.

This appellant had previous convictions, proceeded to trial and remains remorseless. The offence was pre-meditated, ruthless, violent and left the victim injured.

Given all these circumstances I am not convinced that the sentence in the court below was harsh and excessive. A sentence of six years was within a reasonable range of penalties available to the learned Magistrate.

Conclusion

The appeal is dismissed.

Gerard Winter
JUDGE

At Suva
21st January, 2005