Talemailomaloma v State [2008] FJHC 266; HAA079.2008 (30 October 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 079 2008

Between:

LEDUA TALEMAILOMALOMA
AFITARIKI SAUVUNI
Appellants

And:

THE STATE
Respondent

Hearing: 24th October 2008
Judgment: 30th October 2008

Counsel: Appellants in person
Mr. P. Bulamainaivalu for State

JUDGMENT

[1] The Appellants were charged with robbery with violence on the 2nd of July 2008. The charge allege that on the 30th of June 2008 at Sawani in the Central Division, they robbed Arun Prasad of $230 cash, a Nokia phone, and a taxi meter to the total value of $834 and immediately before the robbery used personal violence on him.

[2] The case was first called before the Nausori Magistrates’ Court on the 2nd of September 2008. Both Appellants pleaded guilty. The facts were that the victim is a 33 year old taxi-driver of Lakena. On the 30th of June 2008 at about 8.30am, he dropped a passenger at the Fiji School of Medicine in Tamavua, and picked up the two accused. They asked to be taken to Khalsa Road. They got in with a third person who sat in the back. They then told him to go to Sawani, and then to Navatuvula Village. The 2nd Appellant who was sitting behind the victim, got hold of him. The victim switched off the ignition. The 1st Appellant then grabbed the cash in the shirt pocket of the victim. The 1st Appellant took his mobile phone and taxi meter. The 2nd Appellant then punched him on the face. He fled the scene and made a complaint at the Sawani Police Post. As he was making his complaint, the Tacirua bus came past, from Naitasiri. The two Appellants were inside and were identified by the victim. When the police tried to apprehend the Appellants, they ran away into the bush. Both Appellants were apprehended and interviewed under caution. They admitted the offence. The stolen items were recovered. The victim was examined by a doctor. He had swelling on the left cheek which was tender to the touch. The third man in the taxi was not found.

[3] These facts were admitted. The 2nd Appellant had a lapsed 1997 conviction. They were both treated as first offenders. In mitigation both Appellants said they had reconciled with the driver. They both supported their families.

[4] Sentence was delivered on the 15th of July 2008. Referring to a similar case in the High Court (State v. Patrick Fong HAC 010.04S), she found that the group violence, the attack on a taxi driver providing transport to the public and the use of actual violence to be aggravating factors. She considered the mitigation and gave particular weight to good character and the guilty pleas. They were each sentenced to 2½ years imprisonment.

[5] They now appeal against these sentences, saying that they are harsh and excessive. In response to questions by me, they both said that they did not wish to appeal against their convictions, but only against sentence.

[6] The 1st Appellant asked for further reduction of his sentence pointing to his difficult life in prison, and his responsibilities to his family. The 2nd Appellant said that he had two children, one of whom was at school and said that he had sought forgiveness from the victim.

[7] The State opposes the appeal saying that the sentences were below the accepted tariff of 4-7 years. The circumstances of this robbery were such that a sentence of 5-6 years was justified. The victim, who was trying to earn an honest living by driving a taxi for the public was taken to a remote area by three men who then stole his money, phone and taxi meter and assaulted him. The courts generally take a very dim view of this sort of conduct. However, because of three important factors, the Appellants were treated most leniently by the learned Magistrate. One factor was the guilty pleas, another was the Appellants’ previous good character and the third was their genuine attempts at seeking forgiveness from the victim. This last factor is significant because it reflects on the Appellant’s genuine remorse and regret. All these factors were taken into account and led to the exceptionally lenient sentence of 2½ years imprisonment. To reduce it any further, when the learned Magistrate has already taken all relevant factors into account, would be unprincipled.

[8] For these reasons this appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
30th October 2008