Vakanavue v The State [2006] FJHC 5; HAA0158J.2005S (9 February 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal HAA0158.2005S

KARALO VAKANAVUE AND 2 OTHERS

V

STATE

Fiji High Court, Suva
3rd, 9th February 2006
Gates J

JUDGMENT

Appeal against sentence; robbery with violence contrary to section 293(1)(b) Penal Code; foreign student attacked on street at night by the 3 Appellants; wallet containing F$200 and Yen2000 stolen; no injuries to victim; admissions to police; tariff 4-7 years imprisonment; Appellant 1 22 years old 1^st offender; Appellant 2 19 years, 1^st offender; Appellant 3, 19 years, 1 PC; no weapon used; early pleas of guilty; gang of 3 a more frightening experience for victim than a single assailant; offending histories of Appellants muddled; importance for public of exercise of right of unimpeded movement; courts to protect that right; targeting of foreign paying students and tourists; minimum aggravating factors present.

Appellants in Person
Mr A. Rayawa for the Respondent

[1] The three appellants were convicted in the Suva Magistrates Court on their own pleas of guilty of a joint single count of robbery with violence, contrary to section 293(1)(b) of the Penal Code Cap 17.

[2] Since they were acting together, 3 of them in all, they should have been charged with the more serious limb of the robbery section, namely section 293(1)(a), reflecting the circumstance of aggravation namely that of “being together with one other person or more at the time of committing the offence.” Both paragraph (a) and (b) carry the same penalty. Both are felony offences with a maximum sentence of life imprisonment.

[3] The appellants were charged with having robbed a 28 year old Japanese student of F$200 and Yen2,000 and of having used personal violence on him. The complainant had been walking at 7.30 pm along Grantham Road from New Sardar Supermarket. He had reached Cargo Brokers Fiji Ltd when he was attacked by the appellants and had his wallet stolen. All three Accused had admitted their involvement to the police in their interviews. The complainant did not receive any injuries.

[4] The appeal against conviction has no substance. Appellant 1 said no money was taken from the complainant. He admitted there was a tussle between the appellants and the victim but says there was no money taken. He said they were trying to take some money from him. They were all drunk at the time. They ran away as the police came to the scene. The police managed to arrest them from their homes the next day. Appellant 1 asked for forgiveness. He says the sentence is too harsh and the prison is overcrowded, and diseases spread because of it.

[5] Appellant 2 [Taniela Vakalaca] also seeks the court’s forgiveness and a lighter sentence. Appellant 3 [Samuela Beeby] denies the taking of the money that day. He denies the violence but admits they “went to grab him.” He also seeks a lighter sentence and the court’s forgiveness.

[6] There is no evidence of equivocality in the pleas tendered in the lower court. They did not raise these issues in their mitigation. The appeals against conviction are dismissed.

[7] Appellant 1 was sentenced to a term of 4½ years imprisonment, and Appellant 2 and 3 to 5 years. In passing sentence the learned Magistrate said:

“I have taken into consideration the Accused’s ages, their background, their guilty plea, and also the fact that the victim of this robbery case was not injured. However, the victim a Japanese national, a student of the University of the South Pacific has outweighed any mitigating circumstance put forward by the three Accuseds. They have tarnished the image of this country abroad. This is not the first time that foreigners visited our shores have been mugged or robbed. Such irresponsible behaviours conducted by young thugs deserves a harsher penalties.”

[8] I was grateful to Mr Rayawa for his assistance in his submissions. It appears some confusion arose on the prior character of the individual appellants. I will deal with each in turn.

[9] The tariff for robbery with violence is 4-7 years imprisonment. Although this was an attack on one person by three, I note there were no injuries to the victim. I select the lower end of the scale as the starting point that is 4 years. I increase that to 5 years because the robbery was committed by 3 persons acting together rendering the victim powerless to defend himself, and because such numbers will have constituted a more frightening experience for the victim than a single assailant.

[10] Since there was no weapon used and no injuries caused I reduce that term by one year to 4 years imprisonment. I would reduce the sentence by another year to 3 years for the early pleas of guilty.

[11] Because Appellant 1 is a first offender aged 22 I would further reduce his term to one of 2 years imprisonment, in place of the 4½ years.

[12] The Magistrate has treated Appellant 2 as a person with two previous convictions. The damaging property finding in 2001 was committed when he was a juvenile, 15 years old. As such it is not to be counted as a conviction for sentencing purposes [Section 20 Juvenile Act Cap 56]. The second matter is still pending, and thus not a conviction to be taken into account. By oversight the Magistrate has referred to Appellant 3’s conviction when sentencing Appellant 2. Appellant 2 aged 19 is also a first offender before the court. His sentence of 5 years is to be reduced to one of 2 years imprisonment for similar reasons as applied to Appellant 1.

[13] Finally Appellant 3’s finding in 2002 was made in the Juvenile Court and is to be disregarded. He therefore has one prior conviction only, the shop breaking, entering and larceny when he was sentenced to a term of 12 months imprisonment suspended for 2 years. That period has expired without further conviction. However, because he has not heeded its warnings and because he is no longer a first offender, he cannot receive the leniency to be accorded to the other two. But his sentence is to be reduced from 5 years to 3 years imprisonment.

[14] Robberies with violence committed by gangs on persons innocently going about their business cannot result in offenders being treated by way of suspended sentence. The balance must be tilted towards the protection of the right of every person in Fiji, citizen or inhabitant, to free and unimpeded movement. For this reason, even young persons who appear as first offenders before the courts, cannot expect diversionary non-custodial sentences.

[15] The Magistrate was thoroughly justified in his remarks concerning the tarnishing of our image abroad. The courts will not suffer lightly the targeting of foreign students or tourists for these kinds of attacks. Had this offence resulted in injury to the victim or been characterised by some other aggravating factor the final sentences would have far exceeded today’s orders.

[16] In summary:

1. The appeals against sentence succeed.
   
2. All 3 sentences are quashed.
   
3. In their place are substituted the following sentences:
   

Appellant 1 2 years imprisonment.

Appellant 2 2 years imprisonment.

Appellant 3 3 years imprisonment.

[Samuela Beeby]

A.H.C.T. GATES
JUDGE

Appellants in Person
Solicitors for the Respondent: Office of the Director of Public Prosecutions, Suva