Nawai v State [2011] FJHC 509; HAA023.2011 (8 September 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 023 OF 2011

BETWEEN:

1. JONE NAWAI
2. ASAELI TAMANITOKULA
Appellants

AND:

STATE
Respondent

Appellants in Person
Ms S. Kiran for the State

Date of Hearing : 09 August 2011, 1st September 2011.
Date of Judgment: 08 September 2011.

JUDGMENT

[1] On the 23rd March 2011, both appellants entered a plea of guilty to one joint charge of robbery with violence contrary to Section 311 (1)(a) of the Crimes Decree 2009. They were each sentenced on the 25th May 2011 to eight years' imprisonment with a minimum term of six years.

[2] Both appellants now appeal their sentence on the grounds that it was harsh and excessive. Their joint "application to appeal" contains grounds relating to conviction which they now abandon.

[3] The facts of the case were that on the 12th February 2011 at around 0645hrs at Nakosi Street in Lautoka the victim, a bus driver was on his way to work. These two appellants seized him from behind, and each one punched him. The driver fell to the ground and his wallet containing $84 was stolen from his pocket. The complainant was able to instigate a search. The appellants were identified and arrested. The sum of $84 was recovered.

[4] In his sentence, the Magistrate took a starters point of eight years and to that added six years for aggravating features, which he said to be:

(i) gang offence

(ii) cynical, calculated and relentless offence

(iii) victim physically injured

(iv) victim suffered trauma

(v) victim vulnerable because of his occupation

vi) victim was bus driver whose very nature of work involves occupational risk.

From an interim total he then deducted two years for an early guilty plea, and then another two years for mitigating factors which he considered to be:

(1) remorse

(2) apology to court

(3) co-operation with Police

(4) money robbed not of great value

He then arrived at an interim total of ten years. He deducted 18 months to reflect their previous good character and another 6 months for time spent in remand while awaiting sentence, arriving at the final sentence of eight years' imprisonment.

[5] The first appellant is 32 years old and married with 4 children. He describes himself as an "artist" and in fact is employed as a screen printer and machine operator at Pacific Islands Art. He has been educated to Form 6.

[6] The second appellant is 23 years old and single living with his parents and siblings. He too works as a screen printer with Pacific Arts and is also a graduate from Form 6.

[7] Each of the appellants provided references of good character and each proved to be sincerely remorseful.

Analysis

[8] Both accused being unrepresented in this appeal, the court is rigorous in examining the reasons for sentence, and help was rendered by Miss Kiran for the State in her very fair submissions, directing the court to where errors may have been made on the part of the learned Magistrate.

[9] The Magistrate quite properly in analyzing the accepted tariff range for robbery with violence, was of the view that in his court the range should be between seven to ten years; and he therefore was justified in starting his sentence at the point of eight years. He then however fell into error by adding a further six years to reflect aggravating features, most of which cannot be said to be aggravating features at all. There was not one shred of evidence that the victim was injured, and it must be pure speculation that the victim suffered trauma. Taxi drivers and bus drivers are for obvious reasons vulnerable targets for criminal offences, but this victim was not driving a taxi or a bus. He was on his way to wok and in that regard he is a victim with no peculiar characteristics. Not only was he not driving a bus, but the Magistrate has made his being a bus driver to be two features of aggravation which is doubly unfair. The only possible aggravating features are that it was a joint attack and therefore "gang" violence and that it was "calculated and relentless", although there is very little evidence for that in the facts.

[10] Adding six years for such spurious elements of aggravation is unjust, and particularly so when the strong points in mitigation receive but a two year discount.

[11] There was filed in this case before the Magistrate passed his sentence a considerable amount of mitigating material and the themes of remorse and regret were pervasive and persuasive.

[12] Robbery with Violence is an offence which presents itself to the courts in many various manifestations, from the minor "punch and pickpocket" to the very serious gang invasion of private homes with theft and injury to the occupants. Serious though this offence may be, it cannot be equated to acts of violence with weapons used causing injury to the victim.

[13] In the absence of any evidence of injury to the victim and in the light of evidence that the money stolen from the victim was returned to him a suitable starting point would perhaps be four years rather than eight. The total sentencing process in this case deserves to be re-cast and I therefore quash the sentences passed below and would sentence the pair afresh pursuant to Section 256(3) of the Criminal Procedure Decree 2009.

[14] For each appellant I would adopt a starting point of four years imprisonment. Although assaulting with fists forcing the victim to the ground in order to steal his wallet is a serious crime, it does not warrant the harsher penalties reserved for real violent gang crimes where injuries are caused.

[15] By acting together it must have been a frightening experience for the victim and for that aggravation I add a further one year to the sentence bringing it to an interim total of five years imprisonment. Your mitigation is powerful, and your remorse obvious. For that I deduct a period of two years bringing the total to three years. This includes the three months you spent on remand awaiting sentence. You deserve credit for your clear records and your early pleas of guilty must also be to your credit and a further discount of one year will bring the final sentence that each of your must serve to two years imprisonment. I decline to set a minimum term before you are eligible for parole.

[16] I have considered whether to suspend your sentences or not. I do not consider that the offence is suitable to qualify for suspension. Your attack on the victim was unprovoked and our citizens on their way to work should be protected from such random crime.

[17] Your appeals succeed and you will each now serve a term of imprisonment of two years.

[18] You have 30 days to appeal this sentence to the Fiji Court of Appeal.

Paul K. Madigan
JUDGE

At Lautoka

08th September 2011