Nacili v State [2008] FJHC 40; HAA139J.07S (14 March 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 139 of 2007

Between:

JOTAME NACILI
Appellant

And:

THE STATE
Respondent

Hearing: 7th March 2008
Judgment: 14th March 2008

Counsel: Appellant in person
Ms. W. George for State

JUDGMENT

The Appellant appeals his term of 4 years imprisonment imposed by the Nasinu Magistrates’ Court on the 9th of October 2007. He appeals on the grounds that his guilty plea was not taken into account, his minimal role in the offending and that his co-accused was given a suspended sentence which was unfair. The State opposes the appeal.

The Appellant was charged with robbing Anoresh Baran on the 6th of September 2007, of items to the total value of $4,969 and using personal violence on him before the robbery.

The case was first called in the Nasinu Magistrates’ Court on the 24th of September 2007. The Appellant waived his right to counsel and elected Magistrates’ Court trial. The matter was then adjourned to allow the charges to be consolidated with another case and the Appellant and his co-accused were granted bail. On the 5th of October 2007, the Appellant and his co-accused pleaded guilty to the charge.

The facts were read but are regrettably not on the court record. However they are referred to in the learned magistrates’ sentencing remarks. She found that the Appellant had played a key role in the commission of the offence, that he was armed with a pinch bar which he used to open the grill in the complainant’s shop, that there was planning with others, that he attacked, robbed and threatened the complainant’s wife and struck the complainant on the head with a beer bottle and that none of the stolen goods was recovered.

In mitigation the Appellant said that he was 26 years old and married with three children. He said he worked for a factory and was the sole breadwinner and that his uncle who had always supported him had recently died. He has one previous conviction, for robbery with violence in 2000, for which he had received a suspended sentence.

The 2nd Accused was 20 years old and single. He expressed remorse and said that he was supporting his father in his business. He was a first offender.

The learned Magistrate identified the tariff as being 4-7 years and started at 5 years imprisonment. She deducted 6 months for the guilty plea and another 6 months for his youth. The Appellant was sentenced to 4 years imprisonment. The 2nd Accused was found to be a secondary offender as the watchman who stood as guard while the Appellant broke into the complainant’s shop. She sentenced him to 2 years imprisonment suspended for 3 years.

The Appellant’s main ground of appeal is that his sentence was harsh and excessive. The State disagrees, saying that it is at the lowest end of the tariff. It is correct that the Appellant’s co-accused got a non-custodial sentence but that was principally because he was a first offender and had a secondary role in the offending. The Appellant himself received a suspended sentence when he offended in 2000 in relation to the same offence. The suspended sentence would appear to reflect the sentencing policy of the courts that young first offenders should be kept out of prison.

The Appellant was involved in a cowardly and violent attack on a shop owner and his wife. He was armed with a pinch bar and actual violence was inflicted. The value of the items stolen was high and nothing was recovered. The 4 year sentence imposed was at the lowest end of the tariff and the learned magistrate’s sentencing remarks show that she took into account all relevant mitigating factors. Furthermore the apparent disparity in the sentences imposed is adequately explained by the facts of the case and the mitigation.

In all the circumstances, I do not think that the sentence was wrong in principle. This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
14th March 2008