Banuve v State [2014] FJCA 209; AAU0095.2012 (5 December 2014)

IN THE COURT OF APPEAL, FIJI
[On appeal from the Extended Jurisdiction
of the Magistrates' Court]

CRIMINAL APPEAL NO. AAU0095 OF 2012
[Magistrates' Court Case No: 1233 of 2010]

BETWEEN:

TEVITA BANUVE
Appellant

AND:

THE STATE
Respondent

CORAM : Calanchini P
Chandra JA
Goundar JA

Counsel : Appellant in Person
Mr. S. Babitu for the Respondent

Date of Hearing : 19 November 2014
Date of Judgment : 5 December 2014

JUDGMENT

Calanchini P:
I have read the draft judgment of Goundar JA and agree with the proposed orders.

Chandra JA:
I have read the draft judgment of Goundar JA and agree with the proposed orders.

Goundar JA:
[1] On 30 July 2012, the appellant was sentenced to 4 years and 10 months' imprisonment after he pleaded guilty to a charge of aggravated robbery in the Magistrates' Court exercising extended jurisdiction. The appellant was ordered to serve 2½ years before being eligible for parole. On 27 February 2014, appellant was granted leave to appeal against sentence on the ground that there was a mathematical error in the calculation of the final sentence imposed by the learned Magistrate. Before hearing of the appeal, the appellant renewed his application for leave by adding two additional grounds of appeal. The additional grounds are that the learned Magistrate erred in law by not taking into account the appellant's remand period and that there is disparity in the sentences arising from the sentence that was imposed on the appellant's co-offender. Since the appellant is unrepresented and his additional grounds appear to be arguable, we granted him leave on those grounds as well.

Mathematical error
[2] The State concedes that there is a mathematical error in the calculation of the appellant's sentence. The error is contained at paragraph 16 of the sentencing remarks:

"In your case I would take as my starting point a term of 6 years and add one year for the above aggravating features. I deduct 2 years and 4 months to reflect your guilty plea. I have considered the fact that you pleaded guilty to the charge in the first instance though recorded your guilty plea for the second time after vacation of your previous guilty in High Court. You have no previous criminal record. For this I deduct further 6 months. I deduct another 4 months for your mitigation. Your final term is 4 years and 10 months imprisonment."

[3] The final term that the learned Magistrate arrived at was 4 years and 10 months' imprisonment. However, when one adds and deducts the numerical terms used by the learned Magistrate, the final term comes to 3 years and 10 months. Therefore, on the correct mathematical calculation, the final sentence should have been 3 years and 10 months, and not 4 years and 10 months.

Remand period
[4] A further error conceded by the State is that the learned Magistrate failed to make any reduction in the sentence to reflect the fact that the appellant was in custody on remand for nearly 7 months before sentence. Remand period is a relevant consideration that must be taken into account by the court exercising sentencing discretion. Section 24 of the Sentencing and Penalties Decree endorses the principle of making allowance for remand period in sentence. The failure by the learned Magistrate to take the appellant's remand period was an error.

Disparity in sentences
[5] The third complaint relates to the disparity in sentences. On 17 February 2011, the appellant's co-offender, Savenaca Vunisa was bound over with conditions for 2 years when he pleaded guilty to the charge in the High Court at Lautoka. At the time of the offence, Vunisa was 17 years old. He had no previous convictions and was remorseful and pleaded guilty at the first opportunity. The learned High Court judge took those compelling mitigating factors into account in arriving at his decision not to impose an imprisonment sentence on Vunisa.

[6] It appears that when the learned Magistrate sentenced the appellant in the Magistrates' Court he was not informed that the appellant's co-offender was bound over by the High Court when he pleaded guilty to the charge. The lack of information may explain the reasons for the disparity in sentences. When disparity in sentences is raised as a ground of appeal, the question for the appellate court is whether a reasonable and independent observer, with full knowledge of facts and circumstances relating to the disparity could consider that something had gone wrong with the administration of justice (Sakeasi Raitumaye v The State (unreported Criminal Appeal No. AAU0060 of 2008S; 25 March 2006). Appellate courts interfere with sentences on the ground of disparity only where the disparity is unjustifiable and gross (R v Lawson [1982] 2 NZLR 214).

[7] Counsel for the State submits that the only significant difference in the circumstances of the appellant and his co-offender was their age. The appellant was 23 years old while his co-offender was a juvenile at the time of the offending. Otherwise, both were first time offenders and entered early guilty pleas and expressed remorse. Although the fact that the co-offender was a juvenile was a compelling mitigating factor for him, the appellant himself was a young person with no previous convictions. Yet, his punishment was harsher than his co-offender's punishment. In my judgment, a reasonable and informed observer with full knowledge of all these facts and circumstances relating to the disparity could consider that something had gone wrong with the administration of justice.

[8] However, since the appellant had already served 2½ years' imprisonment, the question of a non-custodial sentence based on disparity ground is now academic. To meet the ends of justice, the best option is to quash the sentence imposed by the Magistrates' Court and substitute a sentence that reflects the length of time that the appellant had been in prison including the remand period.

Result
[9] The appeal against sentence is allowed. The sentence imposed on the appellant in the Magistrates' Court is set aside.

[10] The appellant is sentenced to 2½ years' imprisonment effective from 30 July 2012. There will be no order for a non-parole period because the appellant has effectively served his sentence.

...........................................
Hon. Mr. Justice W. Calanchini
PRESIDENT

............................................
Hon. Mr. Justice S. Chandra
JUSTICE OF APPEAL

............................................
Hon. Mr. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Appellant in Person
Office of the Director of Public Prosecutions for State