Tagicaki v State [2010] FJHC 370; HAA019.2010 (1 September 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 019 OF 2010

BETWEEN:

1. JONETANI TAGICAKI
2. KOLINIO LESUMA
Appellants

AND:

STATE
Respondent

Appellants in Person
Ms M. Fong for the State

Date of Hearing: 9 August 2010
Date of Judgment: 1 September 2010

JUDGMENT

[1] The two appellants were convicted of robbery with violence in the Magistrates Court at Lautoka on the 22nd June 2009 upon their pleas of guilty and agreement to a set of relevant facts. On that day after hearing mitigation the Magistrate said this:

"Adjourned to 27 July 2009 for sentencing. Each accused to get $200 each. To consider suspended sentence."

The matter was brought up in Court six (6) times without sentence partly because of the unavailability of the Magistrate but mostly because these appellants did not appear.

[2] The matter was called before the present Resident Magistrate on the 31st December 2009, who presumably out of caution had the charge read again to the two accused and heard their pleas of guilty. After they had admitted the facts, he then convicted them. He reheard mitigation and adjourned the case for sentencing to the 27th January 2010. The second accused did not appear on the 27th January, nor did he appear on the 9th February 2010. The first accused then absented himself until the 13th May 2010 when both accused appeared and the sentence was handed down. They were each sentenced to a term of 4 years and 3 months, with a minimum term of 12 months.

[3] Each accused appeals against conviction and sentence on the grounds as follows. For conviction;

(i) that each was convicted twice for the same offence;

(ii) that the earlier indication of fine by another Magistrate was not considered;

(iii) that they were prejudiced by not being legally represented.

and for sentence;

(i) that it was harsh and excessive;

(ii) that both were young first offenders;

(iii) no proper discount for a plea of guilty was given.

[4] The State was invited to make submissions but did not do so. Counsel for the State said she "overlooked it".

Facts

[5] At about 4.30pm on the 12th July, 2008 both of the appellants hired a taxi in Lautoka City. They were both drunk and directed the taxi driver to a given address. When the taxi stopped, they got off going to the driver's side and removed the key from the ignition. They punched the driver and took from him money and a mobile phone. The driver kept tooting his horn for help. They ran off but were assaulted by some unknown Fijian youths. They were apprehended by Police and confessed in their cautioned interviews. The phone and some loose coins were recovered.

[6] The first accused was 21 years at the time and single. He worked as a cleaner in Natadola and lives with his grandmother. He has no previous convictions.

[7] The second accused was also 21 years old and worked as an electrician and he too has a clear record. Both accused expressed great remorse.

[8] In his sentence the Magistrate took a starting point of 4 years, increasing that for aggravating features by 6 months and then giving a discount for the mitigation, arriving at a total sentence for each of 4 years 3 months.

[9] Most of the delays to this case being concluded were due to each of the accused absenting himself, at different times, from the hearings. Bench warrants were issued, and quite surprisingly both the first Magistrate and then the latter continued to grant them bail before sentence was finally passed. Their absence meant that 6 months passed in between the first conviction and their appearance before the new Magistrate. It was quite proper for this new Magistrate to put the charge again to the accused and have them agree to the facts; he now being in charge of the matter that had fallen into depths of inactivity. Hence the two convictions. It is not a case where the appellants are able to claim "autre fois convict". They have not been convicted and sentenced for the same offence. The second conviction was but a confirmation of the situation that existed back in June before the earlier Magistrate left the judiciary.

[10] The fact that another Magistrate indicated a considerably more lenient sentence is irrelevant. A sentence is not a sentence until it is passed and in any event had the appellants not absented themselves for five months after the Magistrate said that, they may have been able to avail themselves of that Magistrate's generous spirit.

[11] It has been said many times in this Court that legal representation is not an absolute right. Both accused on first appearance told the Magistrate that they were going to apply for Legal Aid, which is in itself an indication of their knowledge of their right to representation. When they entered their pleas some 11 months after first appearance they had had ample time to pursue their Legal Aid applications or to instruct private Counsel. When their case came before the new Magistrate on the 31st December 2009, he specifically noted in the record that the rights to counsel were explained to both of the accused and that those rights were waived. It can hardly lie in the mouth of each appellant to claim now that they were prejudiced by lack of counsel.

[12] None of the grounds of appeal against conviction is made out and the appeal is dismissed.

Sentence

[13] Robbery of taxi drivers is a very serious offence. As Gates J (as he then was) said in Vilikesa v State (HAA 64/04):

"Violent and armed robberies of taxi drivers are all too frequent. The taxi industry serves this country well. It provides a cheap vital link in short and medium haul transport ... the risk of personal harm they take every day by simply going about their business can only be ameliorated by harsh deterrent sentences that might instill in prospective muggers the knowledge that if they hurt or harm a taxi driver, they will receive a lengthy term of imprisonment."

and Winter J said in State v Patrick Fong (HAC 722/05):

"Much has been said of attacks on taxi drivers. The court has concluded that the need for harsh deterrent sentences to protect taxi drivers, and the transport facility they provide for the public far outweighs the personal mitigating circumstances of unthinking or alienated young men."

Only in rare and exceptional circumstances would this Court consider a suspended sentence for such an offence, even for a first offender.

[14] For robberies of taxi drivers in the Magistrates Court the range of sentencing should be between four to eight years or even more if there are severe aggravating features.

[15] Before me the appellants complained that they were doubly punished. By paying $200 each and then by being imprisoned. Whatever the earlier Magistrate meant when he said "each accused to get $200 each" is unfathomable. However enquiries have revealed that although each did bring $200, it was not paid into Court, there was no fine imposed and each went home that day still with the $200 in his pocket.

[16] The appellants submit that they did not get appropriate credit for the pleas of guilty; and on a reading of the record, I would agree with them. A three month discount is plainly insufficient.

[17] Given that I consider the starting point is manifestly inadequate and given that the credit for the plea of guilty was insufficient, I propose to quash the sentences passed below and in terms of section 256(2)(e) of the Criminal Procedure Decree 2009, pass new sentences on the two appellants. The appellants have at the hearing of this appeal already had explained to them this Court's power to increase sentences and I have today asked them why I should not increase their sentences.

The New Sentences

[18] As other Judges have said, taxi robberies are extremely serious crimes. Drivers are performing an essential service to the public, a service in which they are vulnerable because of necessity they carry cash and they are alone. Even young first offenders cannot be shown mercy if they rob taxi drivers. As Nawana J said recently in Tilalevu and Mataki (HAC 81 of 2010) we must guard against the "First Offender Syndrome" where people would tempt (sic) to commit serious offences once in life under the firm belief that they would not get imprisonment in custody as they are first offenders. The resultant position is that the society is pervaded with crimes. Courts must unreservedly guard itself against such a phenomena, which is a near certainty if suspended terms are imposed on first offenders as a rule."

[19] The Magistrate added six months to the sentence for "aggravating features". However he specified no aggravating feature and there does indeed appear to be none. The punch is the violence subsumed in the offence.

[20] I take as a starting point for this offence a term of 7 years. I add nothing for aggravation but I do deduct 2 years and 3 months, a full third to reflect your pleas of guilty. I cannot give you credit for the delay in your case through the Courts because that delay was mostly of your own making.

[21] The term of imprisonment you will now serve from the original date of sentence is one of four years and nine months. You will serve a minimum term of two years and 6 months before you are eligible for parole.

[22] That is the sentence passed on each of you and for the sake of clarity your sentence can be read as:

Final release date: - 13 February 2015

Earliest date for parole consideration: - 13 November 2012

[23] You have 30 days to appeal this judgment to the Fiji Court of Appeal.

Paul K. Madigan
Judge

At Lautoka
1 September 2010