Lauve v State [2008] FJHC 180; HAA018.2008 (22 August 2008)

IN THE HIGH COURT OF THE FIJI ISLANDS
APPELLATE JURISDICTION
AT SUVA

Criminal Appeal Case No. HAA 018 of 2008

BETWEEN:

SAMUELA LAUVE
Appellant

AND

THE STATE
Respondent

Appellant in Person
Mr. A. Rayawa for the Respondent

Date of Judgment: 22ND August 008

JUDGMENT

1. The appellant was jointly charge with others on one count of Robbery with Violence, contrary to section 293(1) of the Penal Code Cap 17 [PC] and one count of Unlawful Use of Motor Vehicle, contrary to section 292 of the PC.
   
2. The particulars of the Robbery with Violence charge are as follows:
   

‘SAMUELA LAUVE [with others] between the 30th and 31st day of August 2007, at Qilia, Taveuni in the Northern Division being armed with a cane knives robbed Vijay Kumar f/n Ram Chandar of a safe valued at $800.00, cash valued at $26,725.02 the property of Vijay Kumar and at the time of such robbery did use personal violence to the said Vijay Kumar’

3. When the appellant first appeared before the Magistrate Court on 5 September 2007, the charges were explained to him. He understood it. He elected trial in Magistrate’s Court and he waived his right to counsel. The appellant pleaded guilty plea for both counts, after the court had established that it was given of his free will and was not induced. He was convicted as charged after his guilty plea was accepted by the learned Magistrate.
   
4. In reviewing the circumstances of the appellant’s guilty plea, I am satisfied that it was unequivocal and now not subject to appeal.
   
5. The appellant was sentenced to 6½ years imprisonment for the Robbery with Violence count and 6 months imprisonment for the Unlawful Use of Motor vehicle count. The sentences are to be concurrently served, thus making the actual sentence 6½ years imprisonment.
   
6. The appellant now appeals against his sentence just referred to above. The appellant’s letter appended to a Memorandum from the Prison Department dated 13 March 2008, submitted several grounds. Only the following grounds of appeal are relevant to the issue of sentence:
   
   1. The sentence is harsh and excessive because I am a first offender;
   2. I had minimal nature of involvement
   3. I have a young family that needs my support
   4. Other cases of robbery with violence where the accused were given lesser sentences – no example given to the court.
      
7. At the hearing the appellant submitted written submission which merely restates the same ground above in more elaborate wording.
   
8. The appeal is limited to sentence only.
   

Appeal Determination

9. It is needful that this court make some general observation on the attitude of the court with regard to sentences for Robbery With Violence, in particular home invasion. This is so in the light of the some of the grounds that were advanced in this appeal, which the appellant suggest in the course of his submission, is being counseled by certain individuals in prison.
   
10. It must be made clear, if it is still not already clear to those who violate the laws of Fiji by committing serious criminal offences, especially offences involving serious injuries on the innocent home owners; that the courts will not shirk its responsibility in passing long custodial sentences to meet the nature of the crime committed. The prevalence of this type of criminal activity and the fact that it seems to be well organised and resourced, demands that the court pass appropriately long custodial sentences and in appropriate case also fix minimum terms to be served by the offenders. This does not mean that personal circumstances of accused persons will be ignored.
    
11. The days when a convicted felon comes to court and plead for leniency because he is a first offender and therefore should be given a non custodial or a light sentence is now almost over. It will only be in the rarest of circumstances where that may be possible.
    
12. Where as in this case, the appellant pleaded guilty to a home invasion, involving breaking and entering the homes of an elderly couple and then brutally assaulting the innocent owners, to steal their property, including their motor vehicle, it is incongruous to expect a non custodial sentence. Custodial sentence will be the only option if a person is convicted of offences involving personal violence in a home invasion setting.
    
13. The robbery with violence of the home owners in this case was carried out by a group of men, including the appellant, who travelled all the way from Suva to Qila in Taveuni,for the sole purpose of carrying out their criminal enterprise. One of the co-accused with the appellant was a former employee of the couple who became the victim of the robbery with violence. He was the leader and the person who provided the inside information for the criminal activity that was committed.
    
14. In reviewing the sentence determination of the learned magistrate in your case, I find that the starting point of the sentence is within the tariff and the level properly accounts for the prevalence of the offence in our community and it also serve as future deterrence. I noted that for the mitigating factors the learned Magistrate discounted the sentence by 1 year. This aspect in my opinion, does not adequately recognise the fact that this appellant is a first offender in 32 years of his life, his family circumstances and his particular role in the criminal enterprise herein question. In my view a fairer discount should have been 3 years. The residual sentence of 5 years should now be added the 2 years the learned Magistrate determines as proper, and I agree, for the aggravating factors. This will increase the sentence to 7 years.
    
15. This appellant pleaded guilty at the first opportunity. He maintained the same in this appeal. I also note that he is indeed remorseful. The appellant is entitled to one-third discount and therefore his sentence would be 4⅔ years imprisonment.
    
16. The appellant strongly implored this court to suspend his term of imprisonment. I am unable as a matter of law to do that because there are no special circumstances in his case to warrant such an approach. However, in the totality of the appellant’s involvement and with an eye to his future and rehabilitation, I would further reduce his sentence by 1 year. The appellant’s sentence will be 3 years 8 months imprisonment effective from 25 September 2007.
    
17. I make this plea to you learn from this unfortunate turn in your life. Maintain a positive attitude while serving your sentence and make a fresh start in life. If you do, you will find that many good things still awaits you.
    

ORDERS

18. In the light of the above, I make the following Orders:
    

(i) The appeal partially succeeds and the sentence passed in the Magistrates Court is vacated;

(ii) The appellant is therefore sentenced to 3 years 8 months imprisonment effective from 25 September 2007.

Isikeli Mataitoga
JUDGE

At Suva
22 August 2008