Kaunicaramaki v State [2010] FJHC 302; HAA025.2010S (13 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO. HAA 025 OF 2010S

MAIKA KAUNICARAMAKI

V

THE STATE

Counsels: Appellant in Person
Mr. W. Pillay for the State

Hearing: 22nd July 2010
Judgment: 13th August 2010

JUDGMENT

1. On 20th January, 2010, at the Nasinu Magistrate Court, the appellant (accused) waived his right to counsel, elected a Magistrate Court trial, and pleaded guilty to the following offence:

Statement of Offence

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

Particulars of Offence

MAIKA KAUNICARAMAKI VALESU, JOPE GORE AND OTHERS, on the 20th day of November, 2007 at Nasinu in the Central Division robbed SASHI KIRAN d/o RAJ RUP of $500 cash, Sony MP3 player valued at $400, Alcatel mobile phone valued at $150, reading glasses valued at $300 and assorted jewelleries valued at $5,860 to the total valued of $6,710 and immediately before (after) such robbery did use personal violence on the said SASHI KIRAN d/o RAJ RUP.

2. The prosecutor then presented his summary of facts. Briefly, they were as follows. It was a Tuesday night at about 11pm, on 20th November 2007. The two complainant ladies were resting in their house at Caubati. One was a tax officer, and one was a school teacher. Obviously, they were about to go to sleep, after a hard days work. One was in her bedroom, and one was in the sitting room. The appellant with two others, kicked open their door and forcefully entered their house. The appellant and the two others acted as a group. One of the accused held the complainant's mouth closed, and warned her not to shout. Another accused ran into the bedroom, put a knife to the other complainant's neck, and warned her not to resist. The group then ransacked the house, and stole the complainants' properties, as itemized in the charge. They later fled the scene.

3. The complainants reported the matter to police. An investigation was carried out. The appellant was arrested and caution interviewed. He was later charged for violently robbing the two female complainants. The appellant admitted the above summary of facts. He admitted one previous conviction. He then made a verbal plea in mitigation. The court then adjourned for sentencing on 24th March 2010.

4. The learned Resident Magistrate delivered a written sentence on 24th March 2010. She sentenced the appellant on four other criminal files, including the present case, that is, Criminal Case No. 1590 of 2007. She convicted the appellant for "robbery with violence", and sentenced him to 6 years imprisonment.

5. The appellant appealed against the above 6 years prison sentence. On 13th April 2010, he filed six grounds of appeal. On closer look, these grounds could be distilled into two:

(i) the learned Resident Magistrate failed to take into account my early guilty plea:

(ii) the 6 years prison sentence was harsh and excessive.

6. Ground 5(i): Failing to take into account the early guilty plea:

In her sentencing remark, the learned Resident Magistrate said, "...I will deduct 4 years to take into account your early guilty pleas which has saved the court's time..." This ground therefore fails.

7. Ground 5(ii): Sentence was harsh and excessive:

"Robbery with Violence", contrary to section 293(1)(a) 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: see 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. Of course, the actual sentence will depend on the mitigating and aggravating factors.

8. I have carefully read and considered the learned Resident Magistrate's sentencing remarks to find out whether or not she has erred in sentencing the appellant. I can find nothing to fault her sentencing the appellant. She started at 10 years imprisonment, which was within the tariff. She took into account the aggravating and mitigating factors, and made the necessary additions and subtraction. In the end, she arrived at 6 years imprisonment. In my view, this was extremely lenient. A home invasion "robbery with violence" needs a sentence of not less then 9 years imprisonment. A message ought to be sent out to thieves to respect other peoples' residence, otherwise their liberty would be taken away in the form of a 9 years prison sentence. I am tempted to increase the 6 years to 9 years imprisonment, but I will respect the learned Resident Magistrate's decision.

9. The appellant's appeal is denied, and it is dismissed accordingly.

Salesi Temo
ACTING JUDGE

AT Suva
13th August 2010