Waisale v State [2015] FJCA 117; AAU0081.2013, AAU00129.2013, AAU0042.2014 (19 June 2015)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CRIMINAL APPEAL NO. AAU0081 OF 2013
CRIMINAL APPEAL NO. AAU129 OF 2013
CRIMINAL APPEAL NO. AAU0042 OF 2014
[High Court Criminal Case No. 155/10 LTK]

BETWEEN:

1. SULIANO WAISALE
2. NETANI DOMONIBITU
3. SEREMAIA NALULU
Appellants

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Mr. S. Waqainabete for the 1st & 2nd Appellants
Mr. J. Savou for the 3rd Appellant
Mr. M. Delaney for the Respondent

Date of Hearing : 28 November 2014
Date of Ruling : 19 June 2015

RULING

[1] This is an application for leave to appeal against sentence. Two other co-offenders have not appealed. Appellant Nalulu also seeks leave to appeal against his conviction. His appeal is late by 9 months. No compelling reason has been advanced for the late appeal. At the leave hearing, Nalulu abandoned his application for leave to appeal against conviction.

[2] All five offenders pleaded guilty to the following offences in the High Court at Lautoka:-

Count 1 – Manslaughter

Count 2 – Aggravated robbery

Count 3 – Aggravated robbery

Count 4 – Act with intent to cause grievous bodily harm

Count 5 – Assault causing actual bodily harm.

[3] Each offender was sentenced as follows:-

Nalulu - 12 years' imprisonment with a non parole period of 10 years.

Waisale – 9 years' imprisonment with a non-parole period of 7 years.

Tokamalua – 9 years' imprisonment with a non-parole period of 7 years.

Biautubu – 10 years' imprisonment with a non-parole period of 8 years.

Domonibitu – 10 years' imprisonment with a non-parole period of 8 years.

Nalulu's conviction appeal
[4] Nalulu says that he pleaded guilty on the advice of his counsel. He now disagrees with that advice. He is not suggesting his counsel was flagrantly incompetent. Initially Nalulu was charged with murder. His counsel was able to get the charge reduced to manslaughter. Nalulu pleaded guilty to manslaughter, and as a result of his guilty plea he received substantial reduction in his sentence. There is no basis to argue that Nalulu's plea was equivocal. The facts admitted by Nalulu supported the charges. Leave to appeal against conviction is refused.

Sentence Appeal
[5] Waisale and Domonibitu's ground of appeal are:-

1. That the learned sentencing Judge erred in law when he sentenced the Appellants to 15 years imprisonment for the offence of Manslaughter which was beyond the tariff.
   

Nalulu's grounds of appeal are:-

1. That the learned sentencing Judge erred in law and fact when there was a marked disparity in sentencing in that each of his co-accused received lesser sentences than the appellant and thus the appellant has suffered injustice.
   
2. That the learned sentencing Judge erred in law when he failed to separately discount the remand period of 8 months of the Appellant.
   

Waisale and Domonibitu's Appeal
[6] Waisale and Domonibitu's ground of appeal is misconceived. They were not sentenced to 15 years' imprisonment for manslaughter. 15 years was used by the trial judge as the base aggregate sentence to reflect the total criminality involved for five offences. The sentence was then adjusted to reflect the guilty plea and the remand period. When an offender is sentenced for numerous offences, the sentencing judge is entitled to arrive at a total sentence by looking at the total criminality involved. There is no arguable error in the sentencing discretion of the trial judge.

Nalulu's Sentence Appeal
[7] Separate discounting of the remand period does not involve any principle. Separate discounting is done as a matter of practice and not as a matter of law. The law requires the remand period to be taken into account in sentence. In this case, the trial judge did take Nalulu's remand period into account when sentencing him.

[8] The reason for the disparity in sentences was explained by the trial judge. The trial judge considered Nalulu to be the ring leader. This finding was available on the facts. The disparity is justified. Nalulu's grounds of appeal against sentence are not arguable.

Result
Leave refused to all three Appellants.

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

Solicitors:
Office of the Legal Aid Commission for the Appellants
Office of the Director of Public Prosecutions for the Respondent