Buresalei v State [2010] FJHC 301; HAA023.2010S (13 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO. HAA 023 OF 2010S

ANARE BURESALEI

V

STATE

Counsels: Appellant in Person
Ms. P. Low for the State

Hearing: 24th June 2010
Judgment: 13th August 2010

JUDGMENT

1. On 30th December, 2009, at Suva Magistrate Court, the appellant (accused) pleaded guilty to the following offences:

FIRST COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: contrary to Section 293 (1) (b) of the Penal Code, Act 17.

Particulars of Offence

ANARE BURESALEI, on the 29th day of December, 2009, at Suvavou, Lami, in the Central Division robbed one LAURENCE SINGH s/o Frank Singh, one Alcatel Mobile valued at $297.00, one white T-shirt valued at $38.00 and cash of $220.00. All to the total value of $555.00 and at the time of such robbery did use personal violence to the said LAURENCE SINGH.

SECOND COUNT

Statement of Offence

RESISTING ARREST: contrary to Section 274 (a) of the Penal Code, Act 17.

Particulars of Offence

ANARE BURESALEI, on the 29th day of December, 2009, at Suvavou, Lami, in the Central Division after being lawfully arrested by Special Constable 210 Salacieli Tabalailai in due execution of his duty resisted the said arrest.

2. Before the accused pleaded guilty to the charges, they were read and explained to him. He said he understood the charges and then waived his right to counsel. The prosecutor read his summary of facts in court. Briefly, they were as follows. On 29th December 2009, at 1am in the morning, the complainant (21 years old) travelled from Nadera in a taxi to meet his girlfriend, at Suvavou bus stop. When he arrived at the bus stop, he got off the taxi, and talked to his girlfriend, who was waiting at the same. The accused approached the complainant, and asked for money. The complainant refused, wherein the accused attacked him by punching his nose. The accused then forcefully stole the complainant's wallet, $220 cash and his alcatel mobile phone, valued at $297. The complainant fled from the accused, but he caught up with him, and stole his T-shirt valued at $38. The complainant later reported the matter at Lami Police Station. The accused was later arrested by police, but prior to that, he resisted the police. The accused admitted the above facts, and he was subsequently convicted as charged, on both counts.

3. The accused was a first offender. He gave his verbal plea in mitigation. On 15th January 2010, the learned Resident Magistrate sentenced the accused to four years imprisonment on the first count, and three months imprisonment on the second count, both to be served concurrently, that is, a total sentence of 4 years imprisonment.

4. On 28th January 2010, the accused appealed against sentence. Although, he didn't appeal against conviction, I will treat this appeal as an appeal against conviction and sentence. In his appeal against sentence, he advanced four grounds, but on closer look, it could be distilled into three grounds:

(i) the sentence was harsh and excessive;

(ii) that the learned Magistrate erred in law and fact by failing to consider the mitigating factors;

(iii) that the learned Magistrate erred in law and fact by imposing an immediate term of imprisonment.

5. Ground 4(i): Sentence was harsh and excessive:

Robbery with violence, contrary to section 293(i)(b) of the Penal Code, Chapter 17, carried a maximum sentence of life imprisonment. The tariff for "robbery with violence" is a sentence between 6 to 14 years imprisonment: Sakiusa Basa v The State, Criminal Appeal No. AAU 0024 of 2005, Court of Appeal, Fiji; Semisi Wainiqolo v State, Criminal Appeal No. AAU 0027 of 200, Court of Appeal, Fiji; Mitieli Naikelekelevesi v State, Criminal Appeal No. AAU 0061 of 2007, Court of Appeal, Fiji and The State v Sakiusa Rokonabete & Others, Criminal Case No. HAC 118 of 2007, High Court, Suva. The actual sentence will depend on the mitigating and aggravating factors. In this case, the 4 years prison sentence was not harsh and excessive. It was below the tariff. It was an unprovoked attack on an innocent member of the public. The accused showed total disregard to the complainant's right to personal safety, and his property rights, when he punched and stole his properties. If anything, he deserved the 4 years prison sentence, for attacking and stealing from the complainant, without any provocation, at all.

6. Ground 4(ii): Failing to consider the mitigating factors:

A reading of the learned Resident Magistrate's sentencing remarks from pages 11 to 15 of the court record showed that he took into account the accused's plea in mitigation, before sentencing the accused. This ground was not made out, and it must be dismissed.

7. Ground 4(iii): Imposing an Immediate term of imprisonment:

This ground could be answered by repeating what was said under Ground 4(i) above. If anything, all those who violently robbed people in the streets, must realize that an immediate custodial sentence is awaiting them, if found guilty of "robbery with violence". This is so, even if they were first offenders. Being a first offender, is no excuse for violently robbing people. However, in the exercise of its judicial discretion, the courts may pass a non-custodial sentence, for first offenders, if the facts are exceptional. In this case, there was nothing exceptional on the facts for a non-custodial sentence. In fact, the facts of the case called for an immediate custodial sentence.

8. I have carefully perused the court record in attempt to find out whether or not the learned Resident Magistrate erred in convicting and sentencing the appellant. I have found nothing to fault the learned Resident Magistrate in convicting and sentencing the appellant. His appeal is therefore dismissed.

Salesi Temo
ACTING JUDGE

AT Suva
13th August 2010