Ratubuli v State [2008] FJSC 39; CAV0010.2007S (25 February 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL CAV0010 OF 2007S
(Fiji Court of Appeal No. AAU023 of 2006)

BETWEEN:

INOKE RATUBULI
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon. Justice Keith Mason, Judge of the Supreme Court
The Hon. Justice Robert French. Judge of the Supreme Court
The Hon. Justice Mark Weinberg, Judge of the Supreme Court

Hearing: Monday, 18 February 2008, Suva

Counsel: Petitioner in Person
W. Kurisagila for the Respondent

Date of Judgment: Monday, 25 February 2008, Suva

JUDGMENT OF THE COURT

1. On 14 September 2005, Inoke Ratubuli was convicted on his own plea of guilty of the following offences:
   

1. ROBBERY WITH VIOLENCE: Contrary to section 293(1)(b) of Penal Code CAP 17.

Particulars of Offence

INOKE RATUBULI and NETANI RABILI on the 12th day of September, 2005 at Farm Road, Nasinu in the Central Division robbed ASHIF ALI KHAN of $45.00 cash, 1 taxi meter valued at $500.00 and 1 wrist watch valued at $45.00, all to the total value of $590.00, the property of the said ASHIF ALI KHAN s/o LIAKAT ALI KHAN and immediately before such robbery used personal violence on the said ASHIF ALI KHAN s/o LIAKAT KHAN.

2. UNLAWFUL USE OF MOTOR VEHICLE: Contrary to section 292 of Penal Code CAP 17.

Particulars of Offence

INOKE RATUBULI and NETANI RABILI on the 12th day of September, 2005 at Farm Road, Nasinu in the Central Division, unlawfully and without the color of right but not so as to be guilty of stealing took to their own use the motor vehicle registration no: LT 321,the property of ASHIK ALI KHAN s/o LIAKAT ALI KHAN.

3. DRIVING MOTOR VEHICLE WITHOUT A DRIVING LICENSE:

Contrary to section 56(3)(a)(6) and 114 of Land Transport Act No: 35 of 1998.

Particulars of Offence

INOKE RATUBULI on the 12th day of September, 2005 at Farm Road, Nasinu in the Central Division, drove a motor vehicle on Farm Road, Nasinu without being the holder of driving license in respect of the said motor vehicle.

4. DRIVING MOTOR VEHCILE ON CONTRAVERSION OF THE THIRD PARTY POLICY RISK: Contrary to section 4 of the Motor Vehicle Third Party Policy Insurance Act CAP 17.

Particulars of Offence

INOKE RATUBULI on the 12th day of September, 2005 at Farm Road, Nasinu in the Central Division, drove motor vehicle on the Farm Road, Nasinu. When not covered under the insurance of the Third Party Policy as required by the Provision of motor vehicle Third Party Act CAP 17."

2. Mr Ratubuli pleaded guilty in the Resident Magistrates Court at Nasinu to all four counts against him. His co-accused pleaded guilty to the two counts in respect of which he was charged.
   
3. Mr Ratubuli was sentenced to a term of six years imprisonment on the count of robbery with violence and, on the count of unlawful use of a motor vehicle, one months imprisonment to be served concurrently. He was discharged in respect of the remaining two counts relating to driving without a driving licence and driving without third party insurance cover. He was disqualified from holding or obtaining a driver’s licence for 12 months. His co-accused was sentenced to three years imprisonment on the count of robbery with violence and one month imprisonment, to be served concurrently, in respect of the unlawful use of the motor vehicle. The sentences were imposed on 14 September 2005. Both appealed to the High Court against the sentences imposed by the magistrate. Shameem J dismissed their appeals on 3 March 2006.
   
4. The facts of the case were outlined in the judgment in the High Court. On 12 September 2005 Mr Ratubuli and Mr Rabili, with others, hired a taxi from Tacirua to Farm Road, Nasinu. Mr Ratubuli told the driver to stop at Farm Road so he could relieve himself. When the car stopped he got out and punched the driver. He and Mr Rabili then took $45.00 from the taxi. Mr Rabili pulled off the driver’s watch and removed the taxi meter. Mr Ratubuli drove the vehicle to Nausori and then back to Farm Road where he abandoned it. Mr Rabili went with him as a passenger. They fled the car but were later arrested by police. They were found with the taxi meter and $2.00 in cash. Mr Ratubuli did not have a driver’s licence. The driver received injuries in the incident. He suffered bruising to the nape of his neck, tenderness over the right ear with visible bruising and a graze to his left elbow.
   
5. In the Magistrates Court the facts had been admitted by both accused. Mr Ratubuli had one prior conviction for affray in 2004 for which he had been given a conditional discharge. Mr Rabili was a first offender. Mr Ratubuli was 20 years of age, a garage worker and educated to Form 3 level. He claimed to have been drunk when he committed the offences. He expressed remorse. His co-accused was a 20 year old first offender who also claimed to have been drunk at the time of the offence.
   
6. In the High Court, Shameem J noted that the magistrate had considered the tariff for offences of robbery with violence and taken into account all aggravating and mitigating circumstances and had sentenced to the two accused accordingly. Mr Rabili’s sentence had reflected his good character and secondary role.
   
7. In the High Court both accused asked for reduction of their sentences and expressed remorse.
   
8. Shameem J noted that the case was one involving an attack on a taxi driver in an isolated part of Suva. The courts took a serious view of attacks on taxi drivers and other drivers of public service vehicles. Such attacks called for deterrent sentences. She said:
   

"The 6 year term imposed on the 1st Appellant reflects his principal role in this criminal enterprise. I would have been inclined to treat him as a first offender because his one previous conviction was for a minor offence. However there was no escaping the fact that he was the ringleader in this attack, and that he deserved a sentence within the tariff. The 2nd Appellant played a more marginal role and credit was given to him for that, and for his clean record. His sentence falls below the tariff."

The appeal was dismissed in respect of each appellant.

9. On 9 March 2006 Mr Ratubuli appealed to the Court of Appeal against the decision of Shameem J. The grounds of appeal were, in substance, as follows:
   

1. The sentence was manifestly excessive.

2. The Court failed to take into account mitigating circumstances, being the early plea of guilty, co-operation with the police and the Court, the fact that Mr Ratubuli was a first offender and his good previous record.

3. The magistrate failed to consider that Mr Ratubuli was unrepresented.

4. No significant credit was given for the guilty plea.

5. Because of the impact of the sentence it could have been reduced as an act of mercy.

10. On 8 June 2006 the President of the Court of Appeal made an order, recorded as follows:
    

"No right of appeal.

Dismissed under section 35(2)."

11. On 25 September 2006 Mr Ratubuli applied, out of time, to this Court for special leave to appeal against the decision of the Court of Appeal. In substance the grounds of his petition were as follows:
    

1. Failure by the magistrate to appreciate matters relating to the history of the petitioner.

2. Manifestly excessive sentence.

3. The sentence could have been reduced as an act of mercy.

4. A more severe sentence imposed on the petitioner than on his co-accused.

5. Gross disparity in sentences.

6. The sentence did not accord with the principle that it should be as short as possible consistent with the duty of the court to protect the public and deter the criminal.

7. This "ground" simply referred to standard considerations of retribution, deterrence, prevention and rehabilitation. It did not purport to identify any error.

8. Failure by the magistrate to apply the "totality" principle.

12. There was no explanation for the delay in bringing this petition to this Court. More importantly, none of the grounds disclosed any basis upon which this Court could grant special leave to appeal. At each stage of the appellate process Mr Ratubuli has effectively sought a substitutive judgment rather than one based on any reasonably arguable or identifiable error of law. In particular, there is no question of principle or general importance of the kind required to satisfy the criteria in s 7(2) of the Supreme Court Act. The petition for special leave to appeal will therefore be dismissed.
    

Orders:

The petition for special leave is dismissed.

Hon Justice Keith Mason
Judge of the Supreme Court

Hon Justice Robert French
Judge of the Supreme Court

Hon. Justice Mark Weinberg
Judge of the Supreme Court

Solicitors
Petitioner in Person
Office of the Director of Public Prosecutions, Suva for the Respondent