Tuimereke v State [2014] FJCA 15; AAU0078.2011 (26 February 2014)

	Home \| Databases \| WorldLII \| Search \| Feedback Court of Appeal of Fiji

Coram : Goundar JA
Counsel : Appellant in Person
Mr. L. Fotofili for the Respondent
Date of Hearing : 25 February 2014
Date of Ruling : 26 February 2014

[1] This an application for leave to appeal against the total sentence imposed on the appellant for numerous offences by different Courts.

Robbery with violence (home invasion) – 2 years imprisonment suspended for 3 years.

All terms made concurrent but the total made consecutive to the pre-existing 8- year term.

[3] The appellant advances two complaints against his total sentence. His first complaint relates to disparity in sentences imposed on the offenders in Case No. 1149/2009 for a home invasion robbery. In that case the three offenders were sentenced as follows:

The learned Magistrate noted the appellant who was the 4th accused was on bench warrant at the time the above sentences were imposed.

[4] The individual sentences imposed in the Case No. 1149/2009 cannot be compared with the spate of offences committed by the appellant. The parity principle has no application to the appellant's total sentence which is for multiple offending.

[5] The appellant's second complaint is that his total sentence is 15 years imprisonment and not 25 years as worked out by the Department of Corrections. When the appellant was committed to prison on 4 November 2011, the Department of Corrections calculated that the total sentence that the appellant was to serve was 25 years. The Department of Corrections has provided a schedule of sentences that the appellant is currently serving:

WARRANT CHECK – MAX CC
NO: MX 20/12 NAME: Waisake Tuimereke Date of Admission: 21 Feb 11 Date of Sentence: 21 Feb 11
Court, Case No & Wit. No.	DATE	OFFENCE	SENTENCE
1. Nasinu MC CF74/10; Warrant 123/11	21-Feb-11	Ct.1 – R.W.V	8 years imprisonment concurrent to CF71/10 & 72/10. Eligible for parole after 6 years.
2. Nasinu MC CF72/10. Warrant 124/11	21-Feb-11	Ct.1 – R.W.V	7 years concurrent to CF71/10 & 74/10.
3. Nasinu MC CF71/10. Warrant 125/11	21-Feb-11	Ct.1- O.B.E.L	2 years concurrent to CF71/10 & 74/10.
4. Suva HC HAC198/10. Warrant 159/11	24-Jun-11	Ct.1 – R.W.V Ct.2 – R.W.V Ct.3 – R.W.V	7 years consecutive to existing sentence.
5. Suva HC HAC193/10, Warrant 253/11	4-Nov-11	Ct.1 – R.W.V. Ct.2 – R.W.V. Ct.3 – R.W.V.	10 years imprisonment with 8 ½ years non parole, concurrent to sentence in HAC194/2010.
6. Suva HC HAC194/10. Warrant 252/11	4-Nov-11	Ct.1 – R.WV.	10 years imprisonment with 8 ½ years non parole, concurrent to sentence in HAC193/2010.
7. Suva MC CF849/09. Warrant 353/12	28-Feb-12	Ct.1 – R.W.V.	3 years concurrent to present serving term.

[6] It appears that the Department of Corrections has arrived at the term of 25 years by adding the following sentences:

[7] In the last case, the learned judge said the total term of 10 years imprisonment was to commence on 4 November 2011. This meant that the sentence was to be served concurrently with the pre-existing sentence effective from 4 November 2011. So the Department of Corrections calculation of the total sentence appears to be incorrect.

[8] As far as the official sentence is concerned, the appellant's total sentence is 15 years imprisonment with a non-parole period of 14½ years. The question is whether the appellant's total sentence fairly reflects the total criminality involved?

[9] In sentencing offenders for spate of violent offending, the courts must adhere to the observations made by the Supreme Court in Livai Nawalu v The State CAV0012/2012 at paragraphs 27 – 29:

"So far as the head sentence is concerned, the court finds 13 years to be within the range set by recent authority for serious violent crime such as robbery with violence. Here the outstanding factors triggering a high penalty in the range 10-16 years were the spate of offending, the gravity of the anti-social behavior with its menace to persons and property, the invasion of home and privacy, the violence proffered, and the need for very strong disapproval of such behavior. With this type of offending, personal mitigation of the kind raised by the Petitioner, that he is married and now has a small child, count for little.

This approach and the tariff have been established in several cases: The State v Rokonabete HAC118/07; The State v Rasaqio [2010] FJHC, HAC155/2007, Basa v The State [2006] FJCA 23, AAU0024/05, 24th March 2006. It was decided that the English cases were to be followed rather than the New Zealand cases since the English penalties were closer to those in Fiji's legislation.

In Samuel Donald Singh v State Crim.AAU15 and 16 of 2011 Calanchini P in the Court of Appeal said:

"...there is ample authority in this Jurisdiction for concluding that the appropriate tariff for robbery with violence is now 10 to 16 years imprisonment. In selecting 10 years as a starting point the learned trial judge has started as the lower end of the range"."

[10] The offences committed by the appellant were indeed violent in nature. He operated in armed gangs and attacked vulnerable victims like women and elderly in their homes. In some cases, physical violence was inflicted on the victims. The total sentence of 15 years with a non-parole period of 14½ years is clearly with the range of 10-16 years for spate of violent offending.

[11] The grounds of appeal are unarguable and the length of delay in filing the appeal is significant. The appellant told the Court that he was not familiar with the appeal rules. Ignorance of law does not constitute a good cause to grant an extension of time to appeal. Furthermore, the appeal against sentence cannot possibly succeed in all circumstances of this case. In that sense the appeal is frivolous.

[12] Leave is refused and the appeal is dismissed under section 35(2) of the Court of Appeal Act. The Court recommends that the Department of Corrections re-calculate the appellant's total sentence consistent with this ruling.

Mana Vula	-	3 years imprisonment
Iowane Benedito	-	3 years imprisonment
Ravuama Kedraika	-	4 years imprisonment.

Court of Appeal of Fiji

Tuimereke v State [2014] FJCA 15; AAU0078.2011 (26 February 2014)