Baleinakeba v State [2010] FJHC 207; HAA008.2010 (16 June 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 008 OF 2010

BETWEEN:

MANOA BALEINAKEBA
Appellant

AND:

THE STATE
Respondent

Appellant in Person
Ms. L. Tabuakuro for the State

Date of Hearing: 9 June 2010
Date of Judgment: 16 June 2010

JUDGMENT

[1] On the 6th January 2010, in the Lautoka Magistrates’ Court, the appellant was convicted on his own plea of the following counts:

(i) Conspiracy to Commit a Felony contrary to section 385 of the Penal Code, Cap 17.

(ii) Robbery with Violence contrary to section 293 (1) of the Penal Code, Cap. 17.

(iii) Wrongful Confinement contrary to sections 253 and 356 of the Penal Code, Cap. 17; and

(iv) Unlawful Use of Motor Vehicle contrary to section 292 of the Penal Code, Cap. 17.

[2] The facts agreed by the appellant are that on the 22nd April 2009 in the early evening he was with a group of young men who hired a van in Lautoka City to go to Simla. On arrival there they assaulted and tied up the driver and robbed him of cash and his mobile phone and then unlawfully drove the van to Waiyavi.

[3] He was sentenced on the 10th January 2010 as follows:

(i) 12 months

(ii) 8 years

(iii) 9 months
(iv) 5 months

All these sentences were ordered to be served concurrently.

[4] The appellant has filed a timely appeal against sentence in which he states:

(i) his guilty pleas was not considered;

(ii) he received no credit for time spent in remand;

(iii) the Magistrate exceeded his jurisdictional power;
(iv) "four principles of sentencing" were not considered; and
(v) His mitigation was not taken into account.

[5] A reading of the Magistrate’s sentencing remarks shows that none of these grounds of appeal is made out. Each offence was dealt with separately and credit was afforded to the appellant for his guilty plea, his time spent in remand and his meager mitigation.

[6] The appellant devotes much of his written submissions to the Court to the sentence for the robbery count. He submits that the Magistrate in taking a starting point of 5 years and then adding another 5 years of aggravating features, thereby arriving at 10 years (before reducing that further for mitigating circumstances) is wrong in law because 10 years is more than the maximum "tariff" of 4 to 8 years a tariff which he arbitrarily adopts as the "correct" tariff.

[7] A tariff of 4 to 8 years may have at one time been appropriate tariff, but it is certainly no longer. In adopting the dicta of the Fiji Court of Appeal in Basa’s case CA AAU24 OF 2005 The Fiji Courts are now following the English line of cases for robbery with violence and not the more lenient New Zealand authorities. In the High Court, the tariff is more within the range of 10 to 15 years, and given the jurisdictional restraints of the Magistrates Court, I would venture that the proper tariff there now should be 7 to 10 years.

[8] Even if the appellant were correct in adopting unilaterally a tariff of 4 to 8 years, that would remain a suggested guide and there is nothing improper in the Magistrate exceeding the tariff, especially in the exercise of "starting point plus aggravating features".

[9] Although it is not a ground of appeal, the appellant does make a valid point in his written submissions that the offence of conspiracy to commit a felony is superfluous because it is "repetitive". When a group of people commit a robbery, it is obviously by agreement and therefore the conspiracy or agreement is subsumed in the robbery offence. It is rather "heavy-handed" if not duplicitous to charge both offences for the one transaction. The sentence is concurrent however and therefore this duplicity doest not affect the outcome.

[10] The appellant was rather fortunate to have received lenient sentences from the learned Magistrate on all four counts; the making of sentences concurrent was proper because they all arose out of the same transaction and the Magistrate quite correctly stated that sentences passed on other co-accused were irrelevant because their circumstances were different.

[11] None of the appellant’s ground is made out his written submissions find no favour with the Court.
His appeal against sentence is dismissed.

Paul K. Madigan
Judge

At Lautoka
16 June 2010