Ravula v State [2008] FJHC 13; HAA 130.2007 (8 February 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 130 of 2007

Between:

JOSEFA RAVULA
Appellant

And:

THE STATE
Respondent

Hearing: 1st February 2008
Judgment: 8th February 2008

Counsel: Appellant in person
Mr. A. Ravindra-Singh for State

JUDGMENT

The Appellant was charged, convicted and sentenced for one count of robbery with violence. The charge alleged that on the 22nd of September 2007, he robbed Adiem Chandra of a chain, a silver ring and a jacket and immediately before the robbery, used personal violence on him.

The matter was first called on the 24th of September 2007. He waived his right to counsel and pleaded guilty. The facts were that at 2am on the 22nd of September 2007, the complainant a 17 year old school student, was walking along the road on his way home when the Appellant approached him, punched him, and stole the items specified in the charge. The Appellant is the complainant’s neighbor. The Appellant was arrested, interviewed and charged. He admitted the offence under caution. Only the silver ring was recovered.

These facts were admitted. The Appellant has previous convictions, three of which are for assault occasioning actual bodily harm, and two of which are for robbery with violence. In mitigation, the Appellant said that he was 23 years old, and married with one child. He was employed as a cable puller in a construction company. He said he had reconciled with the complainant and that he had only slapped him. The complainant’s medical report was tendered. It showed swelling on the left cheek, and cuts and bruises on the neck. The prosecution disputed the reconciliation and maintained the position that the complainant was punched. The Appellant then said that he had committed the offence whilst drunk and asked for forgiveness. He agreed that he had not reconciled.

The learned Magistrate commenced at 3 years imprisonment, and reduced it by 18 months for the guilty plea and other mitigation. He sentenced the Appellant to 18 months imprisonment. Although the Appellant committed the offence whilst on a suspended sentence, it was not activated because the offence was committed near the end of the operational period. However the learned Magistrate increased the sentence to 2 years because he found the Appellant to show no inclination for rehabilitation because the offence was committed shortly after his discharge from prison.

The Appellant appeals against conviction and sentence. He initially said in his petition of appeal that the learned Magistrate erred in failing to take into account his guilty plea, and putting too much weight on his previous convictions. In court he said that there were three men who actually committed the offence and that he was charged because the ring was found in his possession. He said he knew nothing about who assaulted the Appellant.

This last development is entirely inconsistent with the court record and with the Appellant’s own admissions in the Magistrates’ Court. The version of facts he now tells the Court is not the version he agreed to during the sentencing hearing. Indeed during the appeal hearing, he said that he never meant to commit the offence but had committed it while drunk. The court record gives me no reason to doubt that the Appellant freely pleaded guilty, that the facts disclosed the offence and that the conviction should be upheld.

As for sentence, I find that the learned Magistrate was correct in his approach. He started at a point lower than the tariff because he found the case to be one of aggravated larceny from person. It was not an organized gang robbery. I find that the 18 month sentence he initially intended to impose to be correct in principle and proportionate to the offending. However, the fact that the Appellant had recent previous convictions should not have led to a scaling up of the sentence. A person with previous convictions simply loses the leniency shown to first offenders. He or she is not given harsher punishment because of his/her previous convictions. The additional 6 months imposed is therefore wrong in principle. The sentence to be served is 18 months imprisonment.

This appeal succeeds to this extent.

Nazhat Shameem
JUDGE

At Suva
8th February 2008