Tokotaha v State [2011] FJHC 75; HAA047.2010 (18 February 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA047 of 2010

BETWEEN:

LOKIE TOKOTAHA
Appellant

AND:

THE STATE
Respondent

Hearing: 28 January 2011
Judgment: 18 February 2011

Counsel: Ms N. Nawasaitoga for Appellant
Mr. C. Ratakele for State

JUDGMENT

[1] The appellant pleaded guilty to one count each of robbery with violence, unlawful use of motor vehicle and failure to comply with the provisions of public service vehicle in the Magistrates' Court. He was sentenced to 4 years imprisonment for robbery with violence, 3 months imprisonment for unlawful use of motor vehicle, $100 fine in default 10 days imprisonment for failure to comply with the provisions of public service vehicle. All imprisonment terms were made concurrent. He appeals against sentence.

[2] The victim was a taxi driver. On 26 September 2009 at about 8pm the appellant hired the victim's taxi with three other men. They took the victim to an isolated location, robbed him at a knife point, gagged him with masking tape and threw him down a slope. The total value of the stolen items was $206.00.

[3] The offenders drove off in the victim's taxi. Later in the evening, the appellant was apprehended while driving the taxi. $50.00 cash was recovered from his pocket after a search at the police station. Under caution, the appellant admitted the offences.

[4] The grounds of appeal were condensed into three contentions.

[5] The first contention is that the learned Magistrate gave insufficient weight to the appellant's youth, previous good character and recovering of stolen cash.

[6] In his sentencing remarks, the learned Magistrate considered the fact that the appellant was 20 years old and a first offender. A downward adjustment of 8 months was made to the starting point of 5 years imprisonment to reflect the appellant's youth and previous good character. No reduction was made for recovery of the $50.00 cash. As a matter of principle, when stolen items are voluntarily returned by the offender or the items are recovered by information provided by the offender, the offender is given credit in sentence for recovery of stolen property. In this case, $50.00 cash was recovered by the police when the appellant was searched at the police station. The recovery was involuntary and the appellant was not entitled to any credit for it. No error has been shown in the manner in which the learned Magistrate considered these factors.

[7] The second contention is that the sentence is harsh and excessive. Robbery with violence is a serious offence. The seriousness of the offence is reflected by the maximum penalty prescribed for this offence. The maximum penalty is life imprisonment.

[8] The appellant robbed a taxi driver with a group of men at a knife point. After robbing him the offenders gagged him and threw him down a slope. Although the court was not informed of any injuries sustained by the victim, the threat of violence was real and the victim must have been traumatized by the incident. The serious nature of offending clearly called for a deterrent sentence despite the appellant's youth. As Gates J (as he was then) stated in The State v. Patrick Fong HAC010 of 2004S:

"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: Peni Raiwalui v The State (unreported) Suva Crim. App. No. HAA030.03S, 12 November 2003; Vilikesa Koroivuata v The State (unreported) Cr. App. HAA064.04S, 20 August 2004; State v Charles Marvick (unreported) Suva Cr. Case No. HAC027.028.04S 19 October 2004."

[9] The total sentence of 4 years imprisonment is not excessive in all circumstances of the case.

[10] The third contention is that the learned Magistrate erred in picking 5 years as his starting point, when the starting point for robbery of taxi drivers is 4 years imprisonment. The appellant cites the case of Koroivueta v. State Criminal Appeal No. HAA0064 of 2004 as authority that established the starting point of 4 years imprisonment for robbery of taxi drivers. This contention is misconceived. The case of Koroivueta although was an appeal against a sentence imposed for robbery of a taxi driver, the case did not establish any starting point for robbery of taxi drivers.

[11] The learned Magistrate quite correctly picked the starting point from the general tariff for robbery with violence. Five years was on the lower side of the tariff and no error has been shown.

[12] None of the grounds of appeal have been made out.

[13] The appeal is dismissed.

Daniel Goundar
JUDGE

At Suva
18 February 2011

Solicitors:
Office of the Legal Aid Commission for Appellant
Office of the Director of Public Prosecutions for State