Vilimone v State [2008] FJHC 12; HAA 131-132.2007 (8 February 2008)

IN THE HIGH COURT OF THE FIJI ISLANDS
CRIMINAL JURISDCITION
AT SUVA

Criminal Appeal No HAA 131 and 132 of 2007

BETWEEN

ALIKI VILIMONE
Appellant

AND

THE STATE
Respondent

Ms Luveni for the Appellant
Ms Sufia Hamza for the Respondent

Date of Hearing: 24 January 2008
Date of Ruling: 8 February 2008

RULING

1. Aliki Vilimone, the appellant was charged and convicted in the Magistrates Court at Suva on one count of Robbery with Violence, contrary to section 293(1) of the Penal Code cap 17[PC] and one count of Absconding and Failing to Surrender to Custody, contrary to section 26(1) of the Bail Act 2002 [BA]. For the Robbery with Violence count the appellant was sentenced to 3½ years imprisonment and 1 month imprisonment for the Absconding and failing to Surrender to Custody count under the BA.
   
2. The appellant appeal against sentence only. He complains that the sentence is harsh and excessive. In support of this ground the appellant’s letter dated 3 April 2007 set out five ground of appeal. However, at the hearing of the appeal the grounds relied on have been consolidated to two:
   
   1. as a first offender, the imprisonment does not and will not rehabilitate him; it will only expose him to the influence of hardened criminals;
      
   2. the trial court should have considered a non-custodial sentence.
      
3. Counsel for the Appellant, in her written submission have correctly referred to the guideline case of Sakiusa Basa v the State [2006] FJCA 23, where the tariff for Robbery with Violence was set at 4-7 years. However, where the level of violence perpetrated as part of the robbery was high, one should expect the starting point of the sentence determination to be at the high end of that tariff band or even above the tariff band if circumstances and the justice in the case demands it.
   
4. In this case the learned Magistrate started his sentence determination at 5 years. On the basis of Basa [supra] and Raymond Sikeli Singh & Other v The State, FCA Crim App Case No: AAU 008 of 2000, it was open in law for the learned Magistrate to start with 5 years as the base point for his sentence determination. He considered the relevant mitigating factors that were submitted to him and he gave what he considered to be the appropriate discount in terms of the sentence. He did the same for the aggravating factors that were relevant. He increased the sentence by 6 months. Again this finding was correct in principle, but in my opinion lenient given the level of violence perpetrated on the victim. However, I will not disturb that aspect of the sentence determination.
   
5. The aspect of the sentence determination in the Magistrates Court, that concerned me relates to the fact that the appellant’s guilty plea was not accounted for separately, but included as part of the mitigating factors. Because the appellant pleaded guilty at the first available opportunity, his sentence should be reduced by a third: Veretariki Vetaukula v The State, High Court Crim App Case No: HAA057/07 following Hem Dutt v The State, FCA Crim App Case No: AAU 0066 of 2005.
   
6. In the light of the above, I would reduce the sentence by approximately a third, to 2 years imprisonment.
   
7. Counsel for the Appellant focused the thrust of their arguments against sentence, as being harsh and excessive, towards the possibility of this court being motivated to pass a non custodial sentence. This was advanced on the basis that the appellant was a first offender and that there was need for the court to consider rehabilitation of the offender in reaching its sentence determination. As a matter of sentencing principle I agree with this proposition.
   
8. Having now reduced the sentence of imprisonment to 2 years, the court is able under section 29 of the Penal Code Cap 17 to suspend all or part of that sentence if ‘special circumstances’ exists to motivate it accordingly: Joselyn Deo v The State [2005] FJCA 62. In exercising its discretion in this regard, the court must not be too quick to find special circumstances where it does not exist.
   
9. Having carefully considered the facts in this case, there are really no exceptional factors, except that when the appellant committed the offence in this case, he was 18 years old. In DPP v Jotame Pita (1974) 20 FLR 5, Mr. Justice Clifford Grant opined that the relative youth of the offender is indeed a cogent reason for considering a suspension of the sentence imposed, where the offence is moderately serious and no violence involved. The facts in this case are contrary. A perusal of the medical report of the victim, specifies the injuries sustained by the victim of the robbery and they are serious indeed.
   
10. I am unable to find any basis on which the sentence I have passed may be suspended.
    
11. In the light of the above, the appeal against sentence is successful to the extend set out above.
    
12. I make the following orders:
    
    1. The sentence of 3½ years imprisonment passed by the Magistrate Court in this matter is vacated;
       
    2. The sentence passed by this court is 2 years imprisonment, effective from 3 April 2007.
       

Isikeli Mataitoga
JUDGE

At Suva
8 February 2008