Kaverevere v State [2013] FJHC 293; HAA028.2012 (11 June 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal Case No.: HAA 028 of 2012

BETWEEN:

NEMANI KAVEREVERE
Applicant

AND:

THE STATE
Respondent

COUNSEL : Mr J Savou for the Applicant
Mr J Niudamu for Respondent

Date of Hearing : 13th May 2013
Date of Judgment : 11th June 2013

JUDGMENT

01. Nemani Kaverevere (hereinafter "the appellant") was charged for one count of Robbery contrary to section 310(1) (a) (i) of the Crimes Decree No: 44 of 2009.

02. The particulars of offences were:

Nemani Kaverevere on the 8th day of April 2010, at Suva in the Central Division, stole $35.00 and a Taxi Meter from Daniel Govind Sami, and immediately before stealing, he used force at the said Daniel Govind Sami.

03. On 12th April 2010 the charge was read over and explained to the Appellant. After understanding the charge Appellant pleaded not guilty. He waived the right of counsel before he pleaded not guilty.

04. The matter was then set for trial. After several adjournments finally the Prosecution commenced their case on 06/08/2010 and concluded on 06/04/2011. This matter was pending for judgment for some time as the Resident Magistrate who heard this case has left the bench.

05. The learned Chief Magistrate Mr Ratuvili following section 139(1) of the Criminal Procedure Decree 2009 delivered the judgment on 1st February 2012.

06. On 27th March 2012 the learned Chief Magistrate sentenced the Appellant to an imprisonment term of three years (3) seven months (7) and fifteen days (15) with a non parole period of two (2) years.

07. The Appellant has laid out 7 grounds of appeal against the sentence and conviction and are as follows:

(i) That he was not legally represented.
(ii) The evidence handed in court was lack of corroboration.
(iii) That there was contradicting evidence of witnesses.
(iv) That identification made was not clear.
(v) That there was no concrete evidence to prove the case beyond reasonable ground.
(vi) That the evidence tendered in court is unwarranted for conviction.
(vii) That the learned magistrate relied on circumstantial evidence to convict the accused.

08. At the hearing the Appellant summarized the appeal grounds under three headings, which are as follows:

1. Absence of legal representation;
2. Identification not clear;
3. Evidence relied upon for conviction was weak.
   

09. In Drotini v The State [AAU001 2005S, the court considered an appeal against conviction for one count of Assault and two counts of Rape. The court said that it was preferable that all persons facing serious charges should be represented by counsel but that this is not always possible. In such circumstances "the trial court should ensure that the defendant has been allowed reasonable time to instruct counsel. Once he has, the court also has a duty to hear the case as expeditiously as possible. Whenever an accused is unrepresented the court should explain the procedure sufficiently for the accused to be able to conduct his defence. "The court found that the appellant had not been prejudiced by lack of representation.

10. It was held in Eliki Mototabua v State CAV 004 of 2005 that the right to a lawyer is not an absolute right.

11. Section 165 of the Criminal Procedure Decree provides that "Any person accused of an offence before any criminal court or against whom proceedings are instituted under this Decree in any court, may of right be defended by a lawyer."

12. Upon perusal of the Magistrates' Court record pertains to this case although the court explained the right of a lawyer to the Appellant but he waived his right. Further this case adjourned for several dates before it was taken for trial but the Appellant did not take any endeavour to arrange a counsel. Hence I find this ground of appeal has no merit.

13. According to the Appellant the identification was not clear in this case. As per court record all State witnesses identified the Appellant from the dock. Out of all two witnesses had identified the Appellant at the time of committing the offence.

14. Daniel Govind Sami (PW1) positively identified the Appellant as he was the Taxi driver against whom the offence was committed. Further incident happened in the broad day light after 12 mid-day. The light condition was very good it enabled the witnesses to identify the Appellant very well. The Robbery had taken place for about seven minutes and the PW1 had the ample opportunity to see the Appellant properly.

15. Raijieli (PW2) she had clearly seen the Appellant coming in the Taxi driven by Daniel Govind Sami. Further she had seen the Appellant removing Taxi Meter and running away from the scene.

16. As the Appellant was identified on the spot and it was not a fleeting glance identification, to call for a full blown legal requirement for identification is not necessary. This ground too has no merit.

17. Appellant alleges that the evidence relied upon for his conviction was weak. Prosecution led direct evidence against the accused. Not a single contradiction marked. PW2 had seen the Appellant removing the Taxi Meter and putting into his pocket. The Taxi Meter was seized from his pocket by the police. This ground also has no merit.

18. According to Court of Appeal in Singh v State [2004] FJCA 8; AAU008. 2000S, "robbery with violence either actual or threatened, will always give rise to serious consequences". Following factors have been considered as guidelines in sentencing.

(i) The extent of loss arising from the criminal action.
(ii) Vulnerability of the victim and the effect of them and their lives.
(iii) Subsequent behaviour.
(iv) Previous criminal record of the offender.
(v) Remorse(remorse expressed afterwards how genuine cannot carry as much weight)

19. According to Goundar J in State v Vakararawa [2008] FJHC 114, the dominant factor in assessing seriousness of any type of Robbery is the degree of force used or threatened.

20. The learned Chief Magistrate after considering the evidence which had been led in this case passed an appropriate sentence to the Appellant. The sentence is not inappropriate, inadequate or excessive.

21. The learned Magistrate also considered the provisions of the Sentencing and Penalties Decree and the sentencing tariffs lay down by case laws.

22. For the reasons given in this judgment this appeal against the conviction and sentence is dismissed.

23. Appellant has 30 days to appeal.

P Kumararatnam
JUDGE

At Suva
11/06/2013