Vakabogi v State [2007] FJHC 39; HAA007.2007 (1 June 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA 007 of 2007

Between:

DEI VAKABOGI
Appellant

And:

THE STATE
Respondent

Hearing: 11th May 2007
Judgment: 1st June 2007

Counsel: Appellant in Person
Ms A. Tuiketei for State

JUDGMENT

The Appellant appeals against a term of 8 years imprisonment for an offence of robbery with violence. His submission is that the sentence is harsh and excessive and offends the totality principle. In his submissions in court he said that he had not inflicted any violence on the complainant but that he had merely received the proceeds of the robbery.

The charge was that on the 3rd of August 2006 he and another robbed and assaulted Viliame Waqaluvu, stealing $15.00 cash, one torch, one Nokia phone, one bundle of keys, a wallet, and shoes. The case was called on the 8th of August and the Appellant pleaded not guilty and waived his right to counsel. He was remanded in custody until the 24th of October 2006 when his co-accused changed his plea and received a 3 year term.

The Appellant’s trial proceeded on the same day. The evidence was that the complainant was a watchman at a shop in Nadera. Five boys came in from the road. One climbed over the gate. The others stood outside. The watchman tried to wake up the shop owner to tell him to call the police. He then went back to the gate. He was hit with a stone on his thighs. He fell and did not know what happened next. Someone poked out his eyeball. He was punched on the head and he lost consciousness. The youths stole his mobile phone, watch, shoes, cash and keys. The police later showed him a torch which he identified as his. As a result of the robbery, he has lost sight in one, and has received head injuries.

The investigating officer’s evidence was that he found the stolen torch in the bedroom of the Appellant. Under cross-examination, the officer agreed that the Appellant had told him that he had "brought" the torch from the shop where the robbery had taken place.

The interview of the Appellant was tendered. The Appellant challenged its admissibility saying that it had been obtained by assault and oppression. That was denied by the interviewing officer. He also denied fabricating the interview. In the interview the Appellant admitted committing the offence saying that he and another threw stones at the watchman and when he fell down, searched his pockets. He admitted taking out the mobile phone, and taking home the torch.

The charge statement was also tendered. The charging officer also denied assaulting the Appellant.

The Appellant gave evidence on the issue of the confession alone. Under cross-examination he said that no police officer had punched him but that the interviewing officer had threatened to kill him. He called Viliame Tubua, his former co-accused, who said that he did not know that the Appellant had confessed to the police but that the police had threatened the Appellant.

The learned Magistrate then ruled on admissibility saying that he found that the confession has been voluntarily given.

The Appellant gave sworn evidence again in the trial proper. He said that he did not know anything about the torch found in his home and that the police had found it under his bed. He denied the truth of his confession. He called Viliame Tubua who gave evidence that he had brought the torch to the Appellant’s house and that the Appellant had not committed the offence charged. He said he had committed it and had leaded guilty.

The learned Magistrate then delivered judgment on the 24th of November saying that he accepted the contents of the confession and the fact that the Appellant was in recent possession of the torch. On the basis of this evidence he found the Appellant guilty as charged.

In mitigation the Appellant said he was 23 years old, was single and unemployed.

The learned Magistrate sentenced the Appellant starting at 5 years imprisonment and adjusting for mitigating and aggravating factors. In particular he referred to the loss of one eye by the complainant. He sentenced the Appellant to 8 years imprisonment.

The Appellant submits that this is excessive, and in particular is disproportionate to the 3 year term imposed on the Appellant’s co-accused. He further submits that he did not inflict any violence on the complainant and should not have been sentenced on the basis that he had.

The Appeal

The State submits that the learned Magistrate accepted the contents of the caution statement, and of possession of the torch and that therefore the Appellant was more than a receiver. He was involved in the robbery with violence. Further, State counsel in her comprehensive submissions outlined a number of comparable cases of sentences imposed for robbery with violence. She agreed however that there appeared to be some disparity in the sentences given to the Appellant and his co-accused.

The only real difference in the cases of the two men, is that the co-accused pleaded guilty and was a first offender. In all other respects, the co-accused was the more serious offender because he inflicted actual violence on the complainant. He admitted kicking and punching him. The Appellant according to his confession threw a stone at him, then emptied his pockets. He was not personally responsible for the loss of the eye although under the law he is of course responsible for it as part of a joint enterprise. The Appellant has 13 previous convictions many of which are for crimes of violence.

In the circumstances a heavier sentence was warranted for the Appellant. However, I consider a 5 year disparity to be too great for co-offenders involved in the same criminal enterprise. Such disparity creates a feeling of injustice on the offender and reveals an unfair lack of uniformity in sentencing. I therefore reduce his sentence to 6 years imprisonment to date from the 24th of November 2006.

This appeal is allowed.

Nazhat Shameem
JUDGE

At Suva
1st June 2007