Dutta v Reginam [1977] FJSC 4; Criminal Appeal 106 of 1976 (28 January 1977)

Fiji Islands - Dutta v Reginam - Pacific Law Materials

THE SUPREME COURT OF FIJI

APPELLATE JURISDICTION

CRIMINAL APPEAL No. 106 OF 1976

BETWEE<

RAIMOND DUTTA

AND

REGINAM

JUDGMENTThis is an appeal against severity of sentence, the appellppellant with another having been convicted on his own plea of robbery witlence contrary to section 326(1)(b) of the Penal Code and hand having been sentenced on the 8th September 1976 to three years' imprisonment.

The facts of the case as admitted by the appellant and his co-accused are that the complainant in a drunken condition was assisted by the appellant and his co-accused to a taxi for the purpose of taking the complainant home. Before completing the journey the complainant fell asleep, whereupon the taxi driver was instructed to stop and the appellant and his co-accused removed the complainant's wristwatch, shoes and his money after which they gently placed the sleeping complainant in a drain near the side of the road and ordered the taxi driver to drive them back to the taxi stand. The driver displayed considerable presence of mind and courage by driving straight to the police station where the appellant and his co-accused were apprehended in possession of the complainant's property.

On the particular facts of this case I am of the opinion, with which the Crown concurs, that it would be unsafe to allow the conviction for robbery with violence to stand, as it does not positively appear that there was an intentional (or reckless) use of violence to the person or an intention by force to overpower resistance in order to take the property, or any threat (or apprehended threat) to the physical security of the complainant.

However the facts admitted by the appellant contain all the ingredients of larceny from the person, and under the powers conferred by sections 163 and 300 of the Criminal Procedure Code I accordingly order that a conviction of larceny from the person contrary to section 303 of the Penal Code be substituted.

As I consider that the appropriate sentence for this lesser offence is one of two years' imprisonment I set aside the sentence of three years' imprisonment and impose a sentence of two years' imprisonment with effect from the 8th September 1976.

The position of the co-accused will be dealt with by way of review.

If the commendable conduct of the taxi driver has not been brought to the attention of the Commissioner of Police I require it to be conveyed, as the Commissioner of Police is in a position to express appreciation in a material way.

Clifford H. Grant
Chief Justice

Suva,
28th January 1977.