Tora v State [2015] FJCA 20; AAU0063.2011 (27 February 2015)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

Criminal Appeal No. AAU 0063/2011
(High Court No. HAA 0014 of 2009L)

BETWEEN:

PAULA TORA
Appellant

AND:

THE STATE
Respondent

CORAM : Calanchini, P
Basnayake, JA
Lecamwasam, JA

COUNSEL : Mr. S. Waqainabete for the Appellant
Mr. M. D. Korovou for the Respondent

Date of Hearing : 10 February 2015
Date of Judgment : 27 February 2015

JUDGMENT

Calanchini P

[1] I have read in draft the judgment of Lecamwasam JA and agree that the appeal against sentence of 8 years should be dismissed. I would however reduce the non-parole term to six years for the following reasons. I note that Lecamwasam JA has also proposed a similar reduction.

[2] The purpose of fixing the non-parole term is to fix the minimum term that the Appellant is required to serve before being eligible for any early release. Although there is no indication in section 18 of the Sentencing and Penalties Decree 2009 as to what matters should be considered when fixing the non-parole period, it is my view that the purposes of sentencing set out in section 4(1) should be considered with particular reference to re-habilitation on the one hand and deterrence on the other. As a result the non-parole term should not be so close to the head sentence as to deny or discourage the possibility of re-habilitation. Nor should the gap between the non-parole term and the head sentence be such as to be ineffective as a deterrent. It must also be recalled that the current practice of the Corrections Department, in the absence of a parole board, is to calculate the one third remission that a prisoner may be entitled to under section 27 (2) of the Corrections Service Act 2006 on the balance of the head sentence after the non-parole term has been served.

[3] In my view the non-parole term of seven years on a head sentence of 8 years does not promote or facilitate conditions which might assist the re-habilitation of the Appellant. I note that the previous criminal history of the Appellant may lead to the conclusion that the prospect of rehabilitation is unlikely. However even a prisoner with the Appellant's record should not be deprived or denied the chance or the opportunity to re-habilitate himself or to be rehabilitated. Although relatively long as a ratio of the head sentence, a non-parole term of six years represents a balance between re-habilitation and deterrence in this case.

Basnayake JA
[4] I agree with the reasons and conclusion of Lecamwasam JA.

Lecamwasam JA
[5] The appellant pleaded guilty to a count of aggravated robbery on 19 January 2011 in the High Court at Lautoka contrary to section 311 (i) (b) of the Crimes Decree 2009. On 31 January the appellant was sentenced to 8 years imprisonment with a period of 7 seven years non parole.

[6] The appellant appealed against this sentence on the following seven grounds of appeal:

1. The sentence is harsh and excessive in the circumstances of the case;

2. The learned Judge erred in law and fact in taking irrelevant matters into consideration while sentencing the appellant;

3. The appellant was made a scapegoat by sentence imposed on him when compared to other;

4. The appellant was just a second offender and the early guilty plea which saves the Court time and resources and also a sign of remorse that he also co-operated with the Police upon investigation;

5. That the sentence imposed on the appellant is manifestly harsh and excessive and most unfair in comparison to other cases for the same offence;

6. That the sentencing judge took into account impermissible aggravating factors to enhance sentence;

7. That the sentencing base or starting point is harsh and excessive.

[7] The Leave to appeal application of the appellant had been dismissed by the learned single Judge and subsequent to which the appellant had filed a notice of appeal against the dismissal of the said leave to appeal application. I do not see any petition of appeal being filed against the dismissal of leave to appeal application.

[8] However acting under Section 35(3) of the Court of Appeal Act I consider the notice of appeal filed against the dismissal of the application for leave to appeal as a renewed application for leave to appeal against sentence.

[9] The first ground of appeal is that the imposed sentence is harsh and excessive in the circumstances of the case. At the time germane to the offence he had been self employed as a grass cutter and on the day of the offence, armed with a chopper the appellant had boarded the bus driven by the complainant-victim on Natabua bus route in Lautoka when the victim stretched his hand for the bus fare the appellant had pushed his hand away.

[10] As this had aroused the suspicion of the victim he had pulled the cash box towards him, at which point the appellant had assaulted the victim and robbed him of his cashbox containing $150.00.

[11] This was committed in broad daylight around 11.00 am on a crowded transport bus on a highway. Having grabbed the money he had fled. It is evident that the appellant had committed a serious crime which calls for severe punishment hence under the circumstances I do not think the term of 8 years is excessive or harsh when the tariff for aggravated robbery is now 10 – 16 years imprisonment. The first ground of appeal fails.

[12] The second ground of appeal is that the learned Judge erred in law and in fact in taking irrelevant matters into consideration in sentencing the appellant. In his written submissions and in oral submissions before this court, he was not specific as to what irrelevant matters are or any specific instance of where the Judge erred. The appellant failed to point out specific matters irrelevant to the proceedings to which the learned Judge adverted his consideration, which would, from the appellant's perspective, amount to an error. Therefore I reject the second ground of appeal.

[13] The third ground of appeal itself is confusing and not supported by the appellant to the satisfaction of court. Firstly the phraseology of the ground in question is open to debate, secondly, the appellant has failed to demonstrate to this court with conviction the veracity of his claim and therefore I am not satisfied with the third ground of appeal and I reject it.

[14] In the fourth ground of appeal, though the appellant claims that he is just a second offender, according to paragraph 17 of Justice Nawana's sentencing ruling the appellant is a person with 14 previous convictions. The learned Judge had taken all other mitigating factors into consideration as per paragraph 15 of his order. Therefore this ground too fails. Since he had 14 previous convictions, the learned Judge was not able to consider the appellant as a person of good character. I reject the fourth ground of appeal.

[15] The fifth ground of appeal seems to be a repetition of the first ground of appeal. As observed by Goundar JA, in the leave to appeal ruling "each case is considered on its own facts. The circumstances of the offending and personal circumstances of the offenders may vary from case to case. If a co-accused was present and was given a more lenient term this ground of appeal could have been sustained. However, as he the sole accused in this case there is no basis for comparison. I reject this ground of appeal.

[16] The sixth ground of appeal is that the learned Judge took into account impermissible aggravating factors to enhance the sentence. This is the ground on which the appellant heavily relied on at the time of argument. The learned Judge considered the following as the aggravating factors as per paragraph 12 of his ruling viz:

(i) The offence was committed on a passenger transport bus and robbed its driver;

(ii) You used violence on the complainant-driver when the bus was on a highway with commuters on board; and

(iii) Your act of assault on the complainant-driver really had posed a threat on the commuters, pedestrians and other road users albeit no injuries were sustained by the complainant-driver.

Even though there is some semblance of repetition of the elements of the offence with the aggravating factors identified by the Judge, but I do not think that mere mentioning of elements of the offence had a significant impact on the final sentence, because having picked 10 years as the starting point he has added only 4 years in respect of aggravating factors. When considering aggravating factors in paragraph 12 not only the factor of violence but he has considered other reasons as well namely:

(i) The offence was committed on a passenger transport bus and robbed its driver;

(ii) Your act of assault on the complainant-driver really had posed a threat on the commuters, pedestrians and other road users albeit no injuries were sustained by the complainant-driver.

Therefore the 4 year period is in respect of the aggravating factors mentioned in (i) and (iii) as well and not only on violence alone. Assaulting the driver and putting fear into the passengers thereby causing panic, anxiety and shock are aggravating factors that in this case justified the four years for aggravation.

[17] The seventh ground of appeal is that the learned judge erred in taking 10 years as the starting point. In Nawalu v The State [2013] FJSC 11, the Supreme Court expressed the view that the tariff for robbery with violence is 10 to 16 years. Therefore the learned Judge is correct in fixing the starting point at 10 years. Under any circumstances it cannot be anything less than 10 years therefore this ground ought to fail.

[18] I find that the appellant had advanced three additional grounds of appeal (page 27 of case record) however I do not perceive any merit in adverting my attention to the said grounds of appeal as these grounds are similar to the contents to the grounds of appeal discussed thus far. Hence there is no need to reconsider the same grounds again.

[19] For the reasons stated above, I dismiss the appeal but allow reduction of one year in the non-parole term.

The Order of the Court:
Appeal dismissed subject to variation of non-parole term by one year that is reduced the non parole term to six years.

Hon. Justice W.Calanchini
PRESIDENT – COURT OF APPEAL

Hon. Justice E. Basnayake
JUSTICE OF APPEAL

Hon. Justice S. Lecamwasam
JUSTICE OF APPEAL