Suiqa v State [2008] FJHC 334; HAA101J.2008 (28 November 2008)

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

CRIMINAL APPEAL CASE NO: HAA 101 of 2008

BETWEEN

PENI SUIQA

AND

THE STATE

Appellant in Person
Ms Tuiketei for the Respondent

Date of Hearing & Ruling: 28 November 2008.

JUDGMENT

1. Peni Suiqa you are the appellant in this proceedings.
   
2. You were convicted following your guilty plea in the Magistrates Court for one count of Robbery With Violence contrary to section 293(1)(b) of the Penal Code Cap 17. You were then sentenced to 2 years imprisonment on 8 September 2008.
   
3. You now appeal against sentence on the sole ground that it is harsh and excessive. In support of this ground you submit the following:

[court summary]

1. The learned Magistrate erred when he formed the opinion that there were serious aggravating factors that contributed to the sentence imposed;
   
2. That because there was no personal violence inflicted on the complaint but merely threats, as verified by the particulars of offence on the charge sheet, the charge should have been robbery and not robbery with violence;
   
3. The circumstances of this case should have derived a far less sentence or even suspended sentence.
   

4. During the hearing of this appeal, the court informed you that some of the grounds that you submit, are relevant to the issue of your conviction. You confirmed again that your appeal is against sentence only. The court also asked you for any further submission on any of the grounds of the appeal, but you responded that your written submission is sufficient.
   
5. Ms Tuiketei for the State submitted that the sentence is neither harsh nor excessive. It is lenient.
   

Appeal

6. I agree that the sentence in this case is neither harsh nor excessive. Given the circumstances of this case, it is my view that, the sentence is lenient. The circumstances I refer as follows:
   
   1. the blatant disregard of the property and personal rights of the victims;
      
   2. the need to protect members of the public from hooligans like you whose acts of violence against them must meet severe penalties from the courts;
      
   3. the need to pass sentence that serve to deter individuals who may be like minded to commit criminal acts such as the one committed here;
      
   4. Your previous record of criminal offending is relevant in determining a higher starting point;
      
   5. Lack of remorse or any sense of accountability for the unlawful acts committed;
      
7. In the sentence passed by the learned Magistrate there is no reference at all to the above aggravating factors. The court’s sentencing of an accused person must refer to aggravating factors.
   
8. The appellant complains that he did not commit any violence against the victim, yet he admits that he pulled the victim out of the car and held him up around his collar and threatened him if he did not do as he was told. Those acts are sufficient to support a robbery with violence charge as was the case in this instance.
   
9. On the facts of this case, the starting point of the sentence should have been 6 years to be consistent with the latest views expressed by the High Court in Sheped & Ors v The State [2008] FJHC 82, The State v Rokonabete & Ors [2008] FJHC 212; the Court of Appeal in Naikelekelevesi v State [2008] FJCA 11 and the Supreme Court in Joji Waqasaqa v The State [2006] FJSC 28.
   
10. On the facts admitted by the appellant, there was no basis for claiming that there were special circumstances of the case, that would merit the suspension of the term of imprisonment passed as sentence. This ground has no merit and fails.
    
11. In conclusion the appeal against sentence has no merit and is dismissed. The sentence in the Magistrates Court is upheld. I order accordingly.
    
12. It should be made clear that for robbery with violence, the High Court do not consider that a 2 years imprisonment sentence can reasonably be justified in the light of the recent case law authorities. Even in cases where there is guilty plea, if the admitted facts supports the charge it would be in the rarest of occasion where the sentence can be as low as 2 years imprisonment.
    
13. It should also be pointed out that Magistrates Court must include in their sentence ruling the factors considered by them to be mitigating and those considered to be aggravating given the facts of that particular case. This is part of the transparency needed in the practice of open justice. This will assist the appellate courts in better assessing the sentence passed when there is an appeal.
    

Isikeli Mataitoga
JUDGE

At Suva
28 November 2008.