Ralulu v State [2023] FJHC 928; HAA43.2023 (10 November 2023)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 43 of 2023

BETWEEN :

1. SEMI RALULU
2. SAVENACA CAVA
3. RATU INOKE NAUARABOTA
APPELLANTS

A N D :

THE STATE
RESPONDENT

Counsel : Ms. L. Taukei and Ms. K. Marama for the
Appellants.
: Ms. R. Uce for the Respondent.

Date of Hearing : 27 October, 2023
Date of Judgment : 10 November, 2023

JUDGMENT

BACKGROUND INFORMATION

1. All the appellants were charged in the Magistrate’s Court at Lautoka for one count of aggravated robbery contrary to section 311 (1) (a) of the Crimes Act, 2009, one count of theft contrary to section 291 (1) (a) of the Crimes Act, 2009 and wrongful confinement contrary to section 286 of the Crimes Act and appellant three was charged with an additional count of dangerous driving contrary to section 98 (1) and 144 of the Land Transport Act 1998 committed on 20^th September, 2015.
   

2. The summary of facts admitted by all the appellants are as follows:

“On the 20^th of September 2015, Accused 1 Victor Joseph Low, Accused 3 – Semi Ralulu and Accused 4 – Savenaca Cava boarded PW1’s vehicle from Yasawa Street and asked him to take them to the corner shop. Upon arriving at the corner shop Accused 2 – Ratu Inoke Naurabota also got into the car. They had been drinking beer at Hunters Inn Niteclub prior to this. Accused 2 bought beer and then they told PW1 to take them to Adam Street; upon reaching Adam Police Post, he was told to toot the horn. After that he was told to turn back towards Tavakubu Road.

As they reached the junction of Tavakubu Road and Golf Course Road, PW1 was told to stop and at that time the one sitting on the back held him by the neck whilst others assaulted him. He was then gagged and tied and kept in between the seats, facing the floor of the car. Whilst he lay on there, he was burnt with cigarettes on his right hand and back.

The four accused persons then drove to Namaka to After Dark Nite Club. Whilst in Namaka, they met Atelaite Waqanivere (PW2), defacto partner of accused 2, Vilimaina Tuivucirua (PW3) and Milika Masei (PW4) who also got into the car. PW2 knew accused 1, 3 and 4 through accused 2 as he had introduced them to her as his friends. Inside the car Accused 2, Ratu Inoke was driving. Accused 4 Savenaca Cava sat in the front passenger seat whilst Accused 3, Semi Ralulu sat in the boot of the car where PW1 was also kept at this time still gagged and tied. Along the way, PW2 and Accused 2 started arguing when the vehicle veered of the road and landed in Sabeto River. PW2 got injured from the accident and was seen by a Doctor later who noted a 2cm x 3cm laceration on the left elbow.

PW1 remained in the car until the vehicle landed in Sabeto River. He was pulled out by Semi Ralulu after which they all ran away.

The accused persons (except Semi Ralulu) and PW2, PW3 and PW4 walked to University of Fiji and then hired a van from Saweni Top Shopping Centre; PW2, PW3 AND PW4 went to Banaras whilst accused 1, 2 and 4 went to one Nasalo’s place in Saweni to drink beer. Accused 3 left for Tavua.

PW1 sought help from a passerby and was taken to Lomolomo Police Post and then later came to Lautoka Police Station and lodged a complaint.

PW1 was seen by a Doctor who noted that he had received injuries on his face and other parts of the body. In addition to the car, $650.00 cash was taken from him; also stolen was his one touch Alcatel phone valued $70.00, 1 i-phone valued $1000.00 and a Kontiki Finance Payment Book.”

3. All the appellants pleaded guilty to the charges in the Magistrate’s Court and admitted the summary of facts read to them. The learned Magistrate upon being satisfied that the appellants had entered an unequivocal plea on their freewill and the summary of facts read also satisfied all the elements of the offences charged convicted all of them.
   
4. After considering mitigation on 6^th June, 2017 all the appellants were sentenced to 7 years and 10 months imprisonment with a non-parole period of 6 years.
   
5. All the appellants had filed their appeal in the Court of Appeal prior to the decision in State vs. Shahadatt Khan, AAU 139 of 2017 (24 February, 2023). The appellants being aggrieved by the sentence rely on the following ground of appeal against sentence.
   

APPEAL AGAINST SENTENCE

1. The learned Magistrate erred in his sentencing discretion by his choice of the incorrect tariff for aggravated robbery resulting in harsh and excessive sentence.

LAW

6. In sentencing an offender the sentencing court exercises a judicial discretion. An appellant who challenges this discretion must demonstrate to the appellate court that the sentencing court fell in error whilst exercising its sentence discretion.

7. The Supreme Court of Fiji in Simeli Bili Naisua vs. The State, Criminal Appeal No. CAV0010 of 2013 (20 November 2013) stated the grounds for appeal against sentence at paragraph 19 as:-

“It is clear that the Court of Appeal will approach an appeal against sentence using the principles set out in House v The King [1936] HCA 40; (1936) 55 CLR 499 and adopted in Kim Nam Bae v The State Criminal Appeal No. AAU0015 at [2]. Appellate Courts will interfere with a sentence if it is demonstrated that the trial judge made one of the following errors:-

(i) Acted upon a wrong principle;

(ii) Allowed extraneous or irrelevant matters to guide or affect him;

(iii) Mistook the facts;

(iv) Failed to take into account some relevant consideration.”

8. The appellants counsel argues that the learned Magistrate had relied on an incorrect tariff between 8 years to 16 years imprisonment for aggravated robbery laid down by the Supreme Court in Wallace Wise vs. The State [2015] FJSC 7 which was not applicable to the current case.
   
9. The case of Wallace Wise (supra) was a home invasion case from which the above tariff came about which was distinguished from the current set of facts. Counsel submits that the accepted tariff for the offence of aggravated robbery against service providers is between 4 to 10 years imprisonment (see Usa vs. The State, [2020] FJCA 52).
   
10. In addition to the above counsel argued that by taking a starting point of 9 years imprisonment and then adding 4 years for the aggravating factors had resulted in double counting hence resulting in an excessive sentence.
    

DETERMINATION

11. There is no doubt that the learned Magistrate had used the wrong tariff which was for a home invasion as opposed to the accepted tariff involving offences against service providers such as taxi, bus and carrier drivers. On the other hand the summary of facts is not impressive it appears to be a planned mission by the appellants who had outnumbered the victim and took control of his car.
    
12. The appellants only left the vehicle with the victim confined after it veered off the road into the river. There is also a breach of trust by the appellants towards the victim who was led to believe that there was a genuine and paid work at hand. The facts are serious and scary and the appellants can only be thankful to one of the appellants who had pulled the victim out of the vehicle after it landed in the river. This was also a night time going to early hours of the morning robbery by a group of men who had assaulted, gagged, tied and kept the victim in between the seats facing the floor of the car and was taken from one place to the other. To aggravate the situation for the victim he was burnt with cigarettes on his right hand and back.
    
13. To arrive at a decision whether the error in principle by the learned Magistrate had led to an excessive sentence this court is guided by the decision of the Supreme Court in State vs. Eparama Tawake [2022] FJSC 22, CAV 0025 of 2019 (28 April, 2022) from paragraphs 23 to 30:

[23] The State suggests that the best way for the Court to achieve consistency in sentencing for “street muggings” is to adopt the methodology of the Definitive Guideline on Robbery issued by the Sentencing Council in England. That Guideline (as with the case of other definitive guidelines issued by the Sentencing Council) classifies cases of robbery by reference to two important factors: the degree of the offender’s culpability and the level of harm suffered by the offender’s victim. There are three degrees of culpability and three levels of harm. The Guideline identifies a sentencing range for each class of case, and a starting point within that range.

[24] The English guideline covers three different types of robbery: “home invasions”, professionally planned commercial robberies, and street and less sophisticated commercial robberies. Our focus in this case is on the last type. Even then, though, the English framework would require some refinement in Fiji, because in England there is a single offence of robbery, whereas Fiji has two offences of robbery: robbery contrary to section 310 of the Crimes Act and aggravated robbery contrary to section 311 of the Crimes Act. Moreover, as we have seen, the offence of aggravated robbery takes two forms: where the offender “was in company with one or more other persons” at the time of the robbery, and where the offender “has an offensive weapon with him or her” at the time of the robbery. Such guidance as we give has to reflect these differences.

[25] For my part, I think that this framework, suitably adapted to meet the needs of Fiji, should be adopted. There is no need to identify different levels of culpability because the level of culpability is reflected in the nature of the offence, and if the offence is one of aggravated robbery, which of the forms of aggravated robbery the offence took. When it comes to the level of harm suffered by the victim, there should be three different levels. The harm should be characterized as high in those cases where serious physical or psychological harm (or both) has been suffered by the victim. The harm should be characterized as low in those cases where no or only minimal physical or psychological harm was suffered by the victim. The harm should be characterized as medium in those cases in which, in the judge’s opinion, the harm falls between high and low.

[26] Once the court has identified the level of harm suffered by the victim, the court should use the corresponding starting point in the following table to reach a sentence within the appropriate sentencing range. The starting point will apply to all offenders whether they pleaded guilty or not guilty and irrespective of previous convictions:

	ROBBERY (OFFENDER ALONE AND WITHOUT A WEAPON)	AGGRAVATED ROBBERY (OFFENDER EITHER WITH ANOTHER OR WITH A WEAPON)	AGGRAVATED ROBBERY (OFFENDER WITH ANOTHER AND WITH A WEAPON)
HIGH	Starting point: 5 years imprisonment Sentencing range: 3-7 years imprisonment	Starting point: 7 years imprisonment Sentencing range: 5-9 years imprisonment	Starting point: 9 years imprisonment Sentencing range: 6-12 years imprisonment
MEDIUM	Starting point: 3 years imprisonment Sentencing range: 1-5 years imprisonment	Starting point: 5 years imprisonment Sentencing range: 3-7 years imprisonment	Starting point: 7 years imprisonment Sentencing range: 5-9 years imprisonment
LOW	Starting point: 18 months imprisonment Sentencing range: 6 months-3 years imprisonment	Starting point: 3 years imprisonment Sentencing range: 1-5 years imprisonment	Starting point: 5 years imprisonment Sentencing range: 3-7 years imprisonment

[27] Having identified the initial starting point for sentence, the court must then decide where within the sentencing range the sentence should be, adjusting the starting point upwards for aggravating factors and downward for mitigating ones. What follows is not an exhaustive list of aggravating factors, but these may be common ones:

• Significant planning
• Prolonged nature of the robbery
• Offence committed in darkness
• Particularly high value of the goods or sums targeted
• Victim is chosen because of their vulnerability (for example, age, infirmity or disability), or the victim is perceived to be vulnerable
• Offender taking a leading role in the offence where it is committed with others
  • Deadly nature of the weapon used where the offender has a weapon
  • Restraint, detention or additional degradation of the victim, which is greater than is necessary to succeed in the robbery
  • Any steps taken by the offender to prevent the victim from reporting the robbery or assisting in any prosecution

[28] Again, what follows is not an exhaustive list of mitigating factors, but these may be common ones:

• No or only minimal force was used
• The offence was committed on the spur of the moment with little or

no planning

• The offender committed or participated in the offence reluctantly as a result of coercion or intimidation (not amounting to duress) or as a result of peer pressure
• No relevant previous convictions
• Genuine remorse evidenced, for example, by voluntary reparation to the victim
• Youth or lack of maturity which affects the offender’s culpability
• Any other relevant personal considerations (for example, the offender is the sole or primary carer of dependent relatives, or has a learning disability or a mental disorder which reduces their culpability)

[29] Having decided on the appropriate sentence in this way, the Court should then reduce the sentence by such amount as is appropriate – first for a plea of guilty and then for the time the offender spent in custody on remand awaiting trial and sentence. If judges take these steps in the order I have identified, it is to be hoped that sentences will be more likely to fit the crime, and that undesirable disparities in sentences will be avoided.

[30] This methodology is new to Fiji. In the recent past the higher courts have usually only identified the appropriate sentencing range for offences. They have only infrequently in recent times assisted judges by identifying where in the sentencing range the judge should start. That has caused difficulties identified by the Supreme Court on a number of occasions: see, for example, Seninolokula v The State [2018] FJSC 5 at paras 19 and 20 and Kumar v The State [2018] FJSC 30 at paras 55-58. If this methodology is used, that problem is avoided. Indeed, there is, in my opinion, no reason why this methodology should be limited to “street muggings”, and it may be that thought will be given in the appropriate quarters to find cases to bring to the Court of Appeal for this methodology to be considered for sentencing for other offences.

14. When considering the facts of the case and the sentencing guide mentioned in Tawake’s case (supra) all the appellants offending falls in the high category of offending which has a starting point of 7 years and a sentence range of 5 years to 9 years imprisonment. Although Tawake’s case (supra) is a recent case authority the categorization of the offending reinforces the need for deterrence. In fairness to the appellants I do not wish to adopt the above sentencing range.
    
15. In my considered judgment the facts of the case including the culpability of the appellants and the circumstances of the offending are serious. The innocent victim had not only suffered physically but all his earnings were stolen with damages to his vehicle which was his tool of trade. The court will not take such an offending lightly, it has a duty to ensure that general and specific deterrence factor in sentences of aggravated robbery is taken into account.
    
16. Prematilaka JA sitting as a single judge of the Court of Appeal in Alfred Ajay Palani vs. State, AAU 111 of 2020 (16 December, 2021) made a pertinent observation in respect of the importance of the final sentence rather than the reasoning process leading to the final sentence at paragraph 37 which is applicable to the current issue raised by the appellants:
    

However, it is the ultimate sentence that is of importance, rather than each step in the reasoning process leading to it. When a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step in the reasoning process that must be considered (vide Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006). In determining whether the sentencing discretion has miscarried the appellate courts do not rely upon the same methodology used by the sentencing judge. The approach taken by them is to assess whether in all the circumstances of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies within the permissible range (Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015). However, not every sentence within the range would be necessarily an appropriate sentence that fits the crime.

17. The sentence imposed is within the tariff of aggravated robbery against service providers. The sentence is a timely reminder that the courts will not tolerate robbery of any kind especially on service providers who play an important role in the transport industry. The sentence is neither harsh nor excessive there is no error made by the learned Magistrate in the final sentence and the non-parole period imposed.
    

ORDERS

1. The appeal against sentence is dismissed due to lack of merits. 2. 30 days to appeal to the Court of Appeal.

Sunil Sharma
Judge

At Lautoka
10 November, 2023

Solicitors
Office of the Legal Aid Commission for the Appellants.
Office of the Director of Public Prosecution for the Respondent.