Bogidrau v State [2015] FJCA 164; AAU126.2014 (1 December 2015)

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

CRIMINAL APPEAL NO. AAU126 of 2014
[High Court Case No. HAC85 of 2014S]

BETWEEN :

ILAISA BOGIDRAU
Appellant

AND :

THE STATE
Respondent

Coram : Goundar JA
Counsel : Mr. J. Savou for the Appellant
Mr. M. Korovou for the Respondent

Date of Hearing : 28 October 2015
Date of Ruling : 1 December 2015

RULING

[1] This is an application for leave to appeal against sentence only. The sole ground of appeal states:

"The learned sentencing magistrate caused the sentence to be harsh and excessive by fixing the non-parole period too close to the head sentence."

[2] The appellant was jointly charged with others on one count of aggravated robbery contrary to section 311(1)(a) of the Crimes Decree of 2009. The maximum penalty for this offence is 20 years imprisonment. The appellant pled guilty to the charge in the Magistrates' Court exercising an extended jurisdiction pursuant to section 4(2) of the Criminal Procedure Decree 2009. On 20 August 2014, the learned Magistrate sentenced the appellant to 6½ years' imprisonment with a non-parole period of 5 years.

[3] The appellant's right of appeal is governed by section 21(1)(c) of the Court of Appeal Act, Cap 12. The right of appeal is subject to leave being granted by the Court of Appeal. Section 35(1)(a) of the Court of Appeal Act, Cap.12 gives a single justice of appeal the power to grant leave. The test for leave is set out by the Supreme Court in Naisua v State unreported Cr. App R No. CAV0010 of 2013; 20 November 2013 at paragraphs 19-20.

[4] The only complaint is against the length of the non-parole period. No issue is being taken against the head sentence of 6½ years. The mitigating factors were the appellant's guilty plea and previous good character. Further, he had spent 6 months in custody while on remand.

[5] There were many aggravating factors. The victim was the appellant's employer. The appellant planned the robbery. He arranged two men to stage the robbery according to his plan. The victim was a woman. She was robbed at a knife point and gagged before the robbers fled the scene.

[6] The head sentence of 6½ years clearly reflected the criminality involved. I am not surprised that the appellant has no complaint regarding the length of the head sentence.

[7] The non-parole period was fixed pursuant to section 18(1) of the Sentencing and Penalties Decree 2009. Section 18(1) provides:

"Subject to sub-section (2), when a court sentences an offender to be imprisoned for life or for a term of 2 years or more the court must fix a period during which the offender is not eligible to be released on parole."

[8] In Savu v State unreported Cr. App. No. AAU0090 of 2012; 5 December 2014, the Full Court considered the effect of section 18(1) of the Sentencing and Penalties Decree 2009 and said at para 14:

"Subsection (1) has to be read subject to subsection (2). The effect of these two provisions is that an offender who is imprisoned for 2 years or more must be subject of a non-parole period unless due to the nature of the offence, or the past history of the offender fixing a non-parole period is inappropriate. In other words, fixing of a non-parole period for a term of 2 years or more is mandatory unless for the limited reasons provided by subsection (2) the court declines to fix one. It therefore follows that when the court fixes a non-parole period under subsection (1), the court is not required to give reasons for its decision because the provision is mandatory. However if the court declines to fix a non-parole period then the court must give reasons for exercising the discretion under subsection (2).

[9] More recently, in Tora v State Cr. App. No. CAV11 of 2015; 22 October 2015, the Supreme Court stated at para [13]:

"It is of course relevant to note that the concept of "minimum term" has now been subsumed in the concept of a "non-parole period" under the Sentencing and Penalties Decree, 2009, but the principles discussed above remain the same and are useful in deciding this case. I can do no better than repeat what was said by this Court in paragraph [30] of its judgment in Raogo's case,

"[30] In any exercise of statutory interpretation the task for the Court is to ascertain the intention of the legislature. In the present case it is clear from the express words used and from the legal framework existing at the time the 2003 amendment to section 33 was enacted, that the legislature wished to provide a power in the sentencing court to ensure that in appropriate serious cases a greater proportion of the primary sentence would actually be served in prison with the consequence that there would be less than one third remission granted. So where imposed, the minimum sentence [or under the present legislation, the non-parole period] that is fixed is an ancillary addition to the primary sentence which is intended to override remission on the primary sentence. The mischief that the legislature perceived was that in serious cases and in cases involving serial and repeat offenders the use of the remission power resulted in these offenders leaving prison at too early a date to the detriment of the public who too soon would be the victims of new offences." (Emphasis added).

[10] Clearly, there is no arguable error of principle arising from the length of the appellant's non parole period.

[11] Appellate courts cannot merely substitute their own views regarding the length of the sentence. Appellate courts only intervene when a sentence appears to err in principle. In that regard I endorse the principles stated by Hilbury J in Rex v Kenneth John Ball Cr. App. R. Vol. 35, 164 at p. 165:

"It appears to us appropriate that we should restart the principles which must guide a Court in deciding what is the right sentence to pass on a prisoner. In the first place, this Court does not alter a sentence which is the subject of an appeal merely because the members of the Court might have passed a different sentence. The trial Judge has seen the prisoner and heard his history and any witnesses to character he may have chosen to call. "It is only when a sentence appears to err in principle that this Court will alter it. If a sentence is excessive or inadequate to such an extent as to satisfy this Court that when it was passed there was a failure to apply the right principles, then this Court will intervene."

[12] In my judgment, this appeal is not arguable. I am also convinced that this appeal is frivolous in a sense that it cannot succeed.

Result

[13] Leave refused.

[14] Appeal dismissed under section 35(2) of the Court of Appeal Act Cap. 12.

....................................
Hon. Justice Daniel Goundar
JUSTICE OF APPEAL

Solicitors:

Office of the Legal Aid Commission for Appellant

Office of the Director of Public Prosecutions for State