Ceinaturaga v State [2008] FJHC 247; HAM074.2008 (6 October 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO.: HAM 074 OF 2008

BETWEEN:

VETAIA CEINATURAGA
Applicant

AND:

THE STATE
Respondent

Counsel: Applicant in Person
Ms. N. Tikoisuva for the State

Date of Hearing: Friday 3rd October, 2008
Date of Ruling: Monday 6th October, 2008

RULING

[1] The applicant seeks leave of the Court to withdraw his appeal against sentence.

[2] The applicant was convicted on his own plea of guilty on one count of robbery with violence.

[3] The facts were that on 22 February 2008 at 9 pm, the applicant entered the house of the complainant who was asleep. The complainant was an elderly man in his late seventies. The applicant struck the complainant with a glass louver when the complainant woke up and confronted the applicant. The applicant fled the house with some cash. The complainant’s hand was injured. The injury was not serious.

[4] The offence was committed in the company of two other men. The applicant received $700.00 in foreign currencies as his share from the theft. Nothing was recovered.

[5] The applicant had two other convictions for robbery with violence for which he was sentenced to suspended terms of imprisonment in 2002.

[6] The applicant was arrested and charged. He appeared in the Navua Magistrates’ Court and pleaded guilty to the charge. The learned Magistrate imposed a sentence of 2 ½ years imprisonment.

[7] The applicant appeals against sentence saying the sentence is harsh and excessive for a first time offender. Clearly, the applicant was not a first time offender when he was sentenced in this case and therefore he was not entitled to any credit for previous good character. The only convincing mitigating factor was his early guilty plea which was taken into account by the learned Magistrate. The aggravating factors were the group attack on an elderly man in the security of his home.

[8] When the applicant appeared for first call in this Court, the Court advised him to seek advice from the Legal Aid Commission on the merits of his appeal because on the perusal of the Court Record, the sentence of 2 ½ years imprisonment for a home invasion robbery of an elderly victim prima facie appeared lenient and was well below the tariff for this kind of offence. Since the Court has power to increase the sentence, the applicant was given an opportunity to seek independent legal advice from the Legal Aid Solicitor.

[9] After consulting a Solicitor from the Legal Aid Commission, the applicant through counsel advised the Court in writing his intention to withdraw his appeal.

[10] On 3 October 2008, the applicant appeared in Court and maintained his desire to withdraw the appeal.

[11] The Court enquired from the applicant if he was voluntarily withdrawing his appeal, to which he replied in affirmative.

[12] In these circumstances, leave is granted to withdraw the appeal.

Daniel Goundar
JUDGE

At Suva
Monday 6th October, 2008

Solicitors:
Applicant in Person
Office of the Director of Public Prosecutions, Suva for the State