Lokoni v State [2015] FJCA 15; AAU16.2014 (27 February 2015)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO. AAU 16 of 2014
CRIMINAL APPEAL NO. AAU 25 of 2013
(High Court HAC 49 of 2012)

BETWEEN:

PELASIO LOKONI
WAISIKI RAGECI
SURESH KUMAR
Appellants

AND:

THE STATE
Respondent

Coram : Calanchini P
Chandra JA
Lecamwasam JA

Counsel : Mr. S. Waqainabete for the Appellants
Mr. L. J. Burney for the Respondent

Date of Hearing : 5 February 2015
Date of Judgment : 27 February 2015

JUDGMENT

Calanchini P

[1] I have read in draft the judgment of Chandra JA and agree with his reasons and his proposed orders.

Chandra JA

[2] This is an appeal against the sentences imposed by the Magistrate's Court of Nausori acting on extended jurisdiction when they were charged on one count of Aggravated Robbery contrary to Section 311(1) (a) of the Crimes Decree, 2009.

[3] The Appellants admitted the facts of the case that on the 12 of November 2011 they robbed cash from one Hemant Kumar amounting to $130.

[4] They pleaded guilty and were convicted and sentenced on 24 of January 2013 as follows:

Pelasio Lokoni to 5 years imprisonment, eligible for parole after 4 years.

Waisiki Rageci to 5 years imprisonment, eligible for parole after 4 years.

Suresh Kumar to 7 years imprisonment, eligible for parole after 5 years.

[5] The Appellants had been previously charged with 3 different cases of Aggravated Robbery contrary to Section 311(1) (a) of the Crimes Decree 2009 which were all consolidated before the High Court at Suva. The three cases were in relation to three instances of robberies committed by them as follows:

1. On 8 October 2011 committing robbery in a sum of $ 200.
2. On 21 October 2011 committing robbery in a sum of $430.
3. On 28 October 2011 committing robbery in a sum of $650.
   

[6] In the High Court the Appellants had pleaded guilty and were convicted and sentenced as follows on 15 May 2012:

Pelasio Lokoni to 2 years imprisonment.

Waisiki Rageci to 3 years imprisonment.

Suresh Kumar to 6 years imprisonment with a non parole period of 5 years.

[7] The Appellants appealed against the sentences imposed on them by the Magistrate's Court on the following grounds:

1. That the learned Magistrate erred in law and in principle when he did not deduct one third of the sentence from the starting point to reflect the early guilty pleas.
   
2. That the learned Magistrate erred in law and in principle when he did not consider the totality principle in relation to the similar offences for which the Appellants had been sentenced in the High Court.
   

[8] When the appeal was taken up for argument, Appellant's Counsel laid emphasis on the totality principle.

[9] It is rather unfortunate that the incident that was the basis of the charge before the Magistrate's Court was dealt with separately as the said incident had occurred just two weeks after the last of the three earlier incidents which were the subject of the cases before the High Court as seen from the dates of the occurrences of the said incidents mentioned above. If the last incident which went before the Magistrate's Court had also gone before the High Court at the same time since they seemed to be a series of events of the same nature, the Appellants would not have been in the dilemma that they faced on being sentenced by the Magistrate's Court.

[10] In the present appeal it may be relevant and in the best interests of justice to consider the basis on which the three Appellants were sentenced by the High Court and compare same with the sentences imposed by the Magistrate's Court before dealing with the grounds of appeal.

[11] In the High Court, the learned High Court Judge dealt with Pelasio Lokoni as a Juvenile as he had been 17 years of age, and imposed on him a sentence of two years imprisonment without a non-parole period.

[12] With regard to Waisiki Rageci the High Court imposed a sentence of three years imprisonment without a non-parole period.

[13] Suresh Kumar was sentenced to 6 years imprisonment with a non parole period of 5 years.

[14] In imposing the sentences on the three Appellants the learned High Court Judge commenced with a starting point of 6 years and added 4 years for the aggravating factors for each Appellant. In relation to Pelasio Lokoni, 8 years were deducted for Waisiki Rageci 7 years were deducted and for Suresh Kumar a period of 4 years were deducted, taking into account the mitigating factors, period in remand and the early guilty pleas, which resulted in the final sentences imposed on them as stated above.

[15] In the Magistrate's Court, where there was only one count, the learned Maigstrate commenced his sentencing at a starting point of 10 years, added one year for the aggravating factors for all three accused and then reduced by five years for the mitigating factors and a further 1 year for their early guilty pleas in the case of Pelasio Lokoni and Waisiki Rageci and in the case of Suresh Kumar reduced by three years and one year for the early guilty plea in arriving at the final sentence.

[16] From the above it would seem that if the fourth incident which went before the Magistrate's Court had gone before the High Court, there may not have been any significant difference in the sentences that would have been handed out to the Appellants by the High Court.

The Totality Principle

[17] The main emphasis of the submissions on behalf of the Appellants was on the basis of the Totality principle. The Court of Appeal in Asaeli Vukitoga v The State Criminal Appeal No.AAU 0049 of 2008 (13 March 2013) stated:

"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 offences 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'..."

[18] The learned Magistrate in his sentencing judgment referred to the fact that the Appellants had previous convictions but failed to consider the fact that they were already serving sentences. The details regarding their previous convictions were available to Court as seen from the convictions sheets on record. Consequently, the learned Magistrate failed to consider the totality principle and the provisions of the Sentencing and Penalties Decree, 2009.

[19] At the time that the learned Magistrate sentenced the three Appellants on 24th January 2013 they were serving sentences which were imposed on them by the High Court on 15th May 2012.

[20] Further in considering the manner in which the learned Magistrate arrived at the sentences of the three Appellants, he had taken a starting point of 10 years for the single count which when compared to the starting point taken by the learned High Court Judge of 6 years for three counts was on a higher scale. Further, the learned Magistrate had discounted only 1 year for the early guilty plea which should have been usually one third the sentence as has been the practice followed regularly in Fiji.

[21] If the same basis of sentencing in the High Court was followed by the learned Magistrate the sentences imposed on the Appellants would have been much lower. If a starting point was taken as 6 years and 4 years added on for aggravating factors and eight years deducted for Pelasio then his sentence would have been 2 years with effect from 24th January 2013 which according to the provisions in the Sentencing and Penalties Decree, 2009 should run concurrently to the sentence imposed by the High Court. He would have thus completed his sentence by 24th January 2015.

[22] As for Waisiki Rageci if the same basis of 6 years as the starting point is taken, 4 years added on for aggravating factors and 7 years is deducted, then his sentence would have been 3 years with effect from 24th January 2013 which should run concurrently to the sentence imposed by the High Court. He would complete his sentence by the 24th of January 2016.

[23] As for Suresh Kumar, if the same basis of 6 years as the starting point is taken and 4 years added on for aggravating factors and 4 years deducted then his sentence would be 6 years with effect from 24th January 2013 with a non-parole period of 5 years.

[24] In the case of Suresh Kumar, his sentence by the High Court which was 6 years with a non-parole period of 5 years commenced from 15th May 2012 and he would be eligible for parole by the 15th of May 2017. If the sentence that should have been given by the Magistrate is adopted on the basis set out above it would be effective from 24th January 2013 and would be concurrent to the High Court sentence and he would be eligible for parole by the 24th of January 2018.

[25] There would therefore be an overlap of the non-parole periods. Section 20(1) of the Sentencing and Penalties Decree provides:

"If a court has sentenced an offender to a term of imprisonment with a non-parole period and the offender is sentenced to a further term of imprisonment before the expiration of the non-parole period, the court must fix a new single non-parole period, in respect of all sentences the offender is to serve or complete."

[26] The learned Magistrate in imposing the sentence on Suresh Kumar failed to take into account the term that he was serving as well as the non-parole period set out in the High Court sentence. It was necessary to have set down a single non-parole period when sentencing him.

[27] In the above circumstances it is necessary to set aside the sentences imposed by the learned Magistrate on the three Appellants and impose on them appropriate sentences in keeping with the totality principle and the provisions in the Sentencing and Penalties Decree. In doing so, it is proposed to follow the basis of the sentencing judgment of the High Court which has been set out in paragraphs 20, 21 and 22 above.

[28] The sentences to be imposed on the three Appellants after a consideration of all the facts and in the interests of justice would be as follows:

Pelasio Lokoni - The sentence imposed by the learned Magistrate of 5 years with a non-parole period of 4 years is set aside and substituted with a sentence of 2 years with effect from 24th January 2013. By this time the sentenced of two years imposed on him by the High Court on 15 May 2012 has already been completed.

Waisiki Rageci – The sentence imposed by the learned Magistrate of 5 years with a non-parole period of 4 years is set aside and substituted with a sentence of 3 years with effect from 24th January 2013 with a non-parole period of 2 years.

Suresh Kumar – The sentence imposed by the learned Magistrate of 7 years with a non-parole period of 5 years is set aside and substituted with a sentence of 6 years imprisonment effective from 24th January 2013. This period shall run concurrently with the sentence of 6 years imposed by the High Court which was effective from 15 May 2012. The new non-parole period would be 5 years from 24th January 2013.

Lecamwasam JA

[29] I agree with the Judgment and proposed orders of Chandra JA.

Orders of Court

(1) Appeals allowed.
(2) The sentences imposed on the Appellants in the Magistrate's Court are set aside.
(3) The 1st Appellant, Pelasio Lokoni, is sentenced to a term of 2 years imprisonment with effect from 24 January 2013.
(4) The 2nd Appellant, Waisiki Rageci, is sentenced to a term of 3 years imprisonment with effect from 24 January 2013 with a non parole period of 2 years.
(5) The 3rd Appellant, Suresh Kumar, is sentenced to a term of 6 years imprisonment with effect from 24 January 2013 with non parole period of 5 years with effect from 24 January 2013 to be served concurrently with his existing sentence.

________________________________
Hon. Mr Justice Calanchini
PRESIDENT, COURT OF APPEAL

________________________________
Hon. Mr Justice Chandra
JUSTICE OF APPEAL

________________________________
Hon. Mr Justice Lecamwasam
JUSTICE OF APPEAL