State v Oba [2010] FJHC 93; HAC001.2010 (19 March 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 001 OF 2010
CRIMINAL CASE NO.: 1599 OF 2009

BETWEEN:

STATE
PROSECUTION

AND:

DEMESI KOKARA BUA OBA
ACCSUED PERSON

Counsel: State - Ms. R. Drau
Accused Person - Ms. M. Savou

Date of Hearing: 12th March, 2010.
Date of Sentence: 19th March, 2010.

SENTENCE

Demesi Kokara Bua Oba you were charged on following offences:

[1] Robbery with violence contrary to Section 293(1) (b) of the Penal Code.

[2] Unlawful use of Motor Vehicle contrary to Section 292 of the Penal Code.

[3] Driving motor vehicle without a driving license contrary to Section 56(6) and 114 of the Land Transport Act 35 of 1998.

[4] Driving Motor Vehicle in contravention of the 3rd Party Policy Risk contrary to Section 4(1) (2) of the Motor Vehicle (Third Party Insurance) Act 1977.

You pleaded guilty to all the Counts and you admitted the summary of facts filed. Therefore you were convicted for the offences mentioned in Count 1 – 4 of the information.

The facts admitted by you are:

That you with another person hired the complainants’ taxi where you were seated in the front seat next to the driver. You directed driver to stop at the roundabout at Yohan Place in Bayview Heights. Accomplice got down and came towards the driver and asked for the fare and pulled the driver out of the taxi and you sat on the driving seat. Driver’s mobile phone and $35 cash was robbed. Then with the accomplice you drove the vehicle away from the scene and handed over the taxi to another Fijian youth at Wailoku.

You also took the taxi meter valued at $270 and the amplifier valued at $400 out of the taxi.

The maximum sentence for robbery with violence is life imprisonment. This shows how the legislature expects the court to approach the offence.

The tariff for robbery with violence on taxi drivers is a sentence between 4 – 7 years imprisonment: Aminio Rokotuivuna Mafutuna v State Crim. Appeal No. HAA 153 of 2005 High Court Suva, Simione Raura v State Crim. Appeal No. HAA 068 of 2004.
This offence is a prevalent offence in Fiji especially where taxi drivers are in a vulnerable position.

Considering the offence I take 5 years as the starting point.

Your aggravating factors are that you hired the taxi pretending to be genuine persons who are hiring the vehicle. You just did not respect the rights of the complainant driver when you pulled him out of the taxi leaving him behind and drove the vehicle away. Also you robbed the cash and his mobile phone which was never recovered. When leaving the taxi with another you stole the taxi meter and the amplifier from the taxi. I add further 4 years for the aggravating factors and now it stands at a total of 9 years imprisonment.

Your mitigating factors are that you are 20 years old, unmarried, help parents by providing their daily needs, your early plea of guilty, you are the 1st offender and being remorseful. I reduce 3 years for the early plea of guilty and give another 1 year discount for previous good behaviour as you have no previous convictions.

For all other mitigating factors including your age I reduce another 1 year making the total of 4 years imprisonment on Count No.1.

Count No. 2 unlawful use of motor vehicle is a prevalent offence which taxi drivers are vulnerable and this is more serious as the driver was physically removed from the driving seat in order to take control of the vehicle. In State v Fong [2005] FJHC 722; HAC 010.2004s (3rd March 2005) in citing judgments Justice (as he was then) Anthony Gates said:

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

Considering the facts and circumstances on Count 2 I sentence you to 6 months imprisonment.
It is to be served concurrently with the sentence on Count 1.

On Count No.3 Driving motor vehicle without a driving license I impose a fine of $50 and in default of payment of fine 1 month imprisonment.

On Count No.4 Driving motor vehicle in contravention of the 3rd Party Policy Risk I impose a fine of $25 and in default of payment of fine 1 month imprisonment.

The sentences of the Counts are therefore as follows:

Count 1 - 4 years imprisonment.

Count 2 - 6 months imprisonment.

Count 3 - $50 fine in default of payment 1 month imprisonment.

Count 4 - $25 fine in default of payment 1 month imprisonment.

All sentences to run concurrently.

30 days to Appeal.

Priyantha Fernando
Puisne Judge
19/03/2010