Vukitoga v State [2013] FJCA 19; AAU0049.2008 (13 March 2013)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO. AAU 0049 of 2008
(High Court Criminal Action No. HAC 153 of 2007L)

BETWEEN:

ASAELI VUKITOGA
Appellant

AND:

THE STATE
Respondent

Coram : Calanchini AP
Chandra JA
Madigan JA

Counsel : Mr S Waqainabete for the Appellant
Mr M Korovou and Ms M Fong for the Respondent

Date of Hearing : 11 February 2013
Date of Judgment : 13 March 2013

JUDGMENT OF THE COURT

[1] The Appellant was charged with one count of Robbery with violence pursuant to section 293(1)(b) and one count of Unlawful Use of Motor Vehicle pursuant to Section 292 of the Penal Code (Cap.17).

[2] The Appellant had been a member of a group of persons who had broken into a house at night and threatened the complainant and his wife who were the inmates of the house and robbed jewellery and other items valued at $5,700 and driven away in the car of the complainant. The Appellant who had been armed with a cane knife had stood outside as a lookout while the others had entered the house. He had been given a bottle of whisky and $35 as his share.

[3] Three out of the group of ten who had been involved in the robbery, namely Noa Maya, Peni Matairavula and the Appellant were charged in the High Court of Lautoka, and the Appellant pleaded guilty on the 4th of February 2008 while the other two accused pleaded not guilty.

[4] The trial against Noa Maya and Peni Matairavula proceeded before Govind J and Assessors and were acquitted on 4th March 2008.

[5] After the Appellant pleaded guilty to the two counts he was convicted on 7th February 2008 and sentenced to 7 years and 3 months on the first count and to 3 months imprisonment for the second count. The sentences were to commence from 12th December 2007 and four years were to be served concurrent with his previous sentence of nine years, and 3 years and 3 months to be served consecutively. The 3 months for count 2 was to be served concurrently with the sentence in Count 1.

[6] In sentencing the Appellant the learned trial Judge had started with 7 years, and added 3 years as it was a home invasion, given a discount of 2 years for his belated plea of guilt, a credit of 6 months for the minimal role he had played in the robbery and a further 3 months for subjective features making up a total of 7 years and 3 months.

[7] The Appellant has appealed against the said sentence on the following grounds:

(1) That the sentence offends the Totality principle;
(2) That the sentence was harsh and excessive.

[8] The brief facts as set out in the sentence handed down by Govind J are as follows:

"On the 13th of September 2007 the accused, at about 7 pm joined a group who were planning to break into the house of one Dwaka Reddy, the complainant. Later he and the others entered the house of the complainant. While the rest armed with pinch bars went inside, the accused who was armed with a cane knife was told to stand outside as a lookout.

After entering the house the others (10 of them) threatened the complainant and told him to be quiet and demanded money. 6 of them entered the bedroom where the complainant's wife was (one armed with an iron rod) and one of them grabbed the earring she was wearing and also took other jewellery and assorted items and various other items all to the total value of $5,700. While making their escape they drove away in the complainant's car. The accused was given a bottle of whisky and $35.00 as his share."

[9] The learned trial Judge before pronouncing the sentence that was imposed status thus:

"It has repeatedly been said by the Courts that robberies with violence and those involving home invasion will attract the severest disapprobation of the courts. A person's home is his or her castle, and he/she is entitled to feel secure in that castle. I remember the days when people used to sleep with the windows open. Nowadays virtually every home is a cage with window bars and double locks. Even that does not appear to be enough. This growing menace must be halted as it is reaching epidemic proportions. This accused has six convictions prior to the commission of the present offences."

The Totality Principle

[10] The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences.

[11] In Mill v The Queen [1988] HCA 70 the High Court of Australia in its judgment cited D.A.Thomas, Principles of Sentencing (2nded.1979) pp.56-57 as follows:

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong'; "when....cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."

The Court further cited Ruby, Sentencing (3rd ed.1987),pp.38-41.

"Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise by appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred."

The Court further stated that "The Totality principle has been recognised in Australia. In Knight (1981) 26 SASR 575 the Full Court of the Supreme Court (SA) (Walters, Zelling and Williams JJ) said, in a joint judgment (at 576):

"It seems to us that when regard is had to the totality of the sentences which the applicant is required to undergo, it cannot be said that in all the circumstances of the case, the imposition of a cumulative sentence was incommensurate with the gravity of the whole of his proven criminal conduct or with his due deserts. To use the language of Lord Parker LCJ in Faulkner (1972)56 Cr App R 594 at 596, at the end of the day as one always must, one looks at the totality and asks whether it was too much'."

[12] In Fiji in Tuibua v The State [2008] FJCA 77 the Court approved of the principles set out in Mill v The Queen (supra). Further in Taito Rawaqa v The State [2009] FJCA 7 in a case where the Accused was charged similarly as in the present case the totality principle was discussed and at page 3 of the Judgment stated:

"That the totality principle is so well known now that it is necessary only to make a passing reference to it. It requires a sentencer who is considering whether to impose consecutive sentences for a number of offences to pause for a moment and review the aggregate term and then decide when the offences are looked at as a whole whether it is desirable in the interests of justice to impose consecutive or partly consecutive and partly concurrent sentences or concurrent sentences only in relation to the head sentences. If this is done sensibly then experience shows that the total sentence imposed will be fair and correct."

[13] The Supreme Court in Joji Waqasaqa v The State Cr. App. No.CAV0009 of 2005S dealing with the Totality Principle stated as follows:

[30] Section 28(4) of the Penal Code provides:

"Where a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence of imprisonment which is passed upon him under the subsequent conviction shall be executed after the expiration of the former sentence, unless the court directs that it shall be served concurrently with the former sentence or any part hereof...."

[31] This provision means that sentences for different offences that are imposed when conviction occurs separately are to be served consecutively unless by directing concurrency or partial concurrency the court otherwise orders. A similar principle applies when conviction of two or more distinct offences occurs at one trial, although in that event there is no option of partial concurrency."

[See Criminal Procedure Code S.12(1)] See also Prisons Regulations, reg.139, which also provides for the manner of calculating remissions where there is partial concurrency.

[32] These provisions mean that there should be no automatic resort to concurrency where sentences are imposed for separate offences. Indeed, we would go further and state that entire concurrency needs reasoned justification lest the effective punishment for one offence is rendered nugatory due to the prisoner serving it entirely while serving the sentence imposed earlier for a separate offence.

[34] Of course, the sentencing judge or magistrate is always required to consider the totality of the aggregate sentence in order to ensure that it is just and appropriate. Sentencing is never a mere matter of arithmetic. The court must always step back and take a last look at the total just to see if it looks wrong (R v Bradley [1979] 1 NZLR 262, Mill v The Queen (1988)166 CLR 59, Wong Kam Hong v The State Criminal Appeal No.CAV0002 of 2003S, Supreme Court, 23 October 2003).

[14] The Supreme Court agreed with the principles set out in Mill v The Queen (supra) quoted above at paragraph 11 in relation to the application of the totality principle.

[15] The Appellant was already serving a sentence of 9 years commencing from 12.12.2007 and the sentence of 7 years 3 months in the present case were to be served commencing on 12.12.2007 making it 4 years to be served concurrently to the term he was serving and 3 years and 3 months to be served consecutively. This position would accord well with the totality principle set out above.

Effect of the Sentencing and Penalties Decree of 2009

[16] On behalf of the Appellant it was submitted that the Sentencing and Penalties Decree of 2009 in Section 22 provides that every term or imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences or imprisonment and that therefore the sentence imposed in the present case should have been made concurrent to the sentence that he was already serving.

[17] Section 22 of the Sentencing and Penalties Decree 2009 which came into effect in 2010 provides as follows:

"s.22(1) Subject to subsection(2) every term of imprisonment imposed on a person by a Court must, unless otherwise directed by the Court, be served concurrently with any uncompleted sentence or sentences of imprisonment."

There then follows five exceptions to concurrency, none of which apply to this appellant or his sentence.

[18] The transitional provisions of section 612(2) of the said decree reads:

"On the hearing of any appeal against a sentence imposed by a Court prior to the commencement of this Decree, the Court hearing the appeal may –

(a) Confirm the original sentence to apply in accordance with any law under which it was made at the trial of the offence;

Or

(b) Vary the original sentence and impose any sentence in accordance with this Decree."

[19] This transitional provision gives this Court a choice: to confirm the sentence handed down below or to sentence afresh in accordance with the Sentencing and Penalties Decree.

[20] Section 22 of the Sentencing and Penalties Decree completely reverses the "default" position imposed by section 28(4) of the Penal Code. The Penal Code provision stipulated that any subsequent sentence to one being served shall be "executed after the expiration of the former sentence" (unless the Court otherwise directs): now the Sentencing and Penalties Decree stipulates that a new sentence must be served concurrently (unless the Court otherwise directs).

[21] Such a reversal of sentencing policy would mean that the Supreme Court decision in Joji Waqasawa (Supra) can no longer be regarded as applicable law although it was correctly decided according to the law then pertaining.

[22] The situation that presents itself to the Court therefore, and a proposition advanced by Counsel for the appellant is this: there being no guidance from authorities of higher courts on concurrent or consecutive sentencing, we are left only with the legislation (Sentencing and Penalties Decree) which states that subsequent sentences must be served concurrently with existing sentences.

[23] Guidance for this situation can still be gleaned from the earlier decision of the Supreme Court in Joji Waqasaqa (supra) by analogy. If the Court said (and it did) that where the "default" position was consecutive, then a Court would have to give "reasoned justification" to depart from that position in making sentences concurrent, then a Court must now when the "default" position is concurrency make a reasoned justification to depart from the "default" position in making sentences consecutive or partly consecutive.

[24] That being this Court's view of the manner in which a sentencing Judge must now approach the sentencing of an already serving prisoner; it does not particularly help in the present situation where the Court is faced with a choice of confirming the old sentence or varying the sentence to conform with the Sentencing and Penalties Decree.

[25] The learned trial Judge's sentence of 8 February 2008 was handed down after the appellant had entered a late plea of guilty to the charge of robbery with violence. He had already co-operated with the authorities and made frank admissions. Although by the doctrine of joint liability he was equally responsible for the robbery, he played a minor role by being a lookout downstairs. Bearing all of these factors in mind, far more weight could have been given to the appellant's mitigating features.

[26] At the time of the robbery the appellant was 24 years old and a labourer.

[27] By making part of this long sentence consecutive to the sentence the appellant was serving was rather harsh given his mitigation just referred to. His sentence being served being nine years was suddenly increased to twelve years and three months which for a young man of 24 is most disheartening. The purpose of a custodial sentence is to rehabilitate and to protect the community as well as to punish, but the only purpose of this harsh sentence can only be to punish the accused. The nine year sentence was already long enough for a young man to see the error of his ways, and to punish him by adding another three years for a similar crime is unreasonable.

[28] Without making adjustments to the sentence passed below justice to this appellant can be effected by invoking the transitional provisions of section 61(2)(b) of the Sentencing and Penalties Decree and ordering that the sentence of seven years and three months for this robbery be made wholly concurrent to the nine year term the appellant is already serving.

Sentence being Harsh and Excessive

[29] The sentence imposed on the Appellant for the offence of Robbery with Violence was 7 years and 3 months.

[30] The tariff that had been considered by the learned trial Judge was in keeping with the earlier tariff which was between 4 to 7 years, when he used 7 years as the starting point. The tariff for this type of offence has been increased subsequently.

[31] Basa v The State [2006] FJCA 23 was also a case where the accused had committed the offence of robbery with violence and unlawful use of a motor vehicle as in the present case, the accused was sentenced to six years imprisonment for the robbery and six months concurrent for the unlawful use of the vehicle. The learned trial Judge had taken eight years as the starting point and reduced it finally to 6 years which was to be served concurrently with a 4 year term he was already serving.

[32] The Court of Appeal in Basa's case stated:

"[19] We would also suggest that the earlier decisions of this Court in which New Zealand cases have been used as guidance in assessing the appropriate sentence for robberies with violence may need to be reconsidered in the light of continuing offences of this nature being repeated by the same offenders. The maximum sentence for the comparable offence in New Zealand is 14 years imprisonment and 19 years when they involve home invasion.

[20] In Fiji, the maximum penalty is life imprisonment showing clearly that it is regarded as being in the most serious category of offences. The maximum penalty in England is also life imprisonment and so it may be more appropriate in future to consider English cases as guidance for the appropriate term of imprisonment."

[33] In Wainiqolo v The State [2006] FJCA 70 the appellant was convicted on one count of armed robbery and one of unlawful use of a motor vehicle to a total term of ten years imprisonment which was to run consecutively to a sentence of seven years he was already serving for another robbery. The Court of Appeal affirmed the conviction of the High Court and dismissed the appeal against sentence.

[34] In the present case the Appellant's sentence of seven years and three months would therefore appear to be at the lower end of the scale for such offences when compared to the current sentencing trend of the Courts in Fiji and therefore cannot be considered to be harsh and excessive.

[35] The appeal of the Appellant on the ground that the sentence is harsh and excessive has no merit and would fail.

Order of the Court

[36] The appeal of the appellant is allowed to the extent that the sentence of 7 years and 3 months shall be concurrent to the sentence of 9 years that he is already serving.

Hon. Justice W D Calanchini
ACTING PRESIDENT

Hon. Justice S Chandra
JUSTICE OF APPEAL

Hon. Justice P K Madigan
JUSTICE OF APPEAL