Tabutoci v State [2008] FJHC 263; HAA081.2008 (24 October 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA 081 OF 2008

BETWEEN:

AVAITIA TABUTOCI
Appellant

AND:

THE STATE
Respondent

Counsel: Appellant in Person
Ms. L. Lagilevu for the State

Date of Hearing: Thursday 9th October, 2008
Date of Judgment: Friday 24th October, 2008

JUDGMENT

[1] The appellant was convicted on his own plea of guilty for an offence of robbery with violence and sentenced to 3 ½ years imprisonment.

[2] The guilty plea was entered by the appellant on his first court appearance. The appellant waived his right to counsel and elected the Magistrates’ Court. He informed the learned Magistrate that he understood the charge and was pleading guilty of his own free will.

[3] The facts admitted by the appellant were that on 22 May 2008 at 6.30 pm, the complainant, a 16 year old student was returning home when he was confronted by the appellant. The appellant punched the complainant on the jaw and he fell down on the ground. The appellant took $75.00 cash from the complainant’s pocket and fled the scene. The complainant identified the appellant because they lived in the same settlement. The appellant was drunk when he committed the offence.

[4] The complainant suffered contrition, bruising and lacerations on his body and face. According to the medical report, the complainant was deeply troubled by the incident and unable to walk properly due to injury.

[5] The appellant has 3 previous convictions. In 2002 the appellant was convicted of robbery with violence for which he was fined $100.00.

[6] In mitigation the appellant said he was 23 years old, single and unemployed.

[7] The appellant appeals against conviction saying he did not take any money from the complainant and therefore he could only be convicted of assault.

[8] The appellant appeals against sentence on the ground that the sentence is harsh and excessive.

[9] The appeal against conviction has no merits. The appellant pleaded guilty to the charge of robbery with violence and admitted facts that disclosed taking of $75.00 cash money from the complainant.

[10] As far as the sentence appeal is concerned, the learned Magistrate took 4 years as a starting point, added 2 years for the aggravating factors, and subtracted 2 ½ years for the mitigating factors before arriving at the term of 3 ½ years imprisonment.

[11] The mitigating factors were the early guilty plea and the personal circumstances of the appellant.

[12] The aggravating factors were the intoxication, the young age of the complainant, the actual injuries sustained by the complainant, and the prevalence of street mugging in our community.

[13] The appellant was not entitled to any credit for previous good character.

[14] In Navikailomalagi v The State, HAA 103 of 2002, the High Court upheld a term of 4 years imprisonment imposed on a young offender who had pleaded guilty and had previous convictions for robbery with violence.

[15] In Tamani v The State, HAA 35 of 2008, a sentence of 3 ½ years imprisonment was imposed on a 17 year old offender who pleaded guilty to robbery with violence. The High Court upheld the sentence on appeal.

[16] In Raqauqau v The State, Criminal Appeal No. AAU0100 of 2007, the Court of Appeal upheld a term of 4 years imprisonment imposed on an offender who had pleaded guilty to an offence of street mugging.

[17] Based on these authorities, the term of 3 ½ years imprisonment imposed in the circumstances of this particular case is neither wrong in principle nor manifestly excessive.

[18] The appeal against conviction and sentence is dismissed.

Daniel Goundar
JUDGE

At Suva
Friday 24th October, 2008

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