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

CRIMINAL APPEAL NO.AAU 101 of 2016
[In the Magistrates Court at Nasinu Case No. 388 of 2012]

BETWEEN:

JOSAIA CATI
Appellant

AND:

STATE
Respondent

Coram: 	Prematilaka, JA

Counsel:	Appellant in person
	Mr. R. Kumar for the Respondent

Date of Hearing: 	07 July 2020

Date of Ruling	: 	08 July 2020

RULING 

[1]	The appellant had been arraigned in the Magistrates court of Nasinu exercising extended jurisdiction on two counts of aggravated robbery contrary to section 311(1)(a) of the Crimes Act, 2009 committed with three others. 

[2]	The appellant had pleaded guilty to all charges on 02 May 2016 and the learned Magistrate had convicted him on his own plea and sentenced him on 14 July 2016 to a sentence of 08 years of imprisonment with a non-parole period of 05 years. 

[3]	The summary of facts is not before me and the learned Magistrate’s sentencing order sets out the facts briefly as follows. On 18 March 2012 at about 12.45 p.m. the appellant and the other three had forcefully entered Comsol Moive Shop at Centerpoint, Nasinu and robbed Shivaz Hassan of his mobile phone valued at $200.00. Whilst inside they had assaulted and locked Mohan Vishal Singh in the toilet and stolen $950.00 in cash, one Nokia N65 brand mobile phone valued at $400.00 all to the value of $1,350.00 from him. 
[4]	A timely notice to appeal against sentence had been signed by the appellant on 23 July 2016 (received by the CA Registry on 03 August 2016) against sentence. The appellant had filed additional grounds of appeal on 24 January 2017 and amended grounds of appeal along with written submissions had been tendered on 14 June 2018. The State had tendered its written submissions on 04 April 2019. 

[5]	In terms of section 21(1) (c) of the Court of Appeal Act, the appellant could appeal against sentence only with leave of court. The threshold test applicable is ‘reasonable prospect of success’ to determine whether leave to appeal should be granted (see Caucau v State AAU0029 of 2016: 4 October 2018 [2018] FJCA 171, Navuki v State AAU0038 of 2016: 4 October 2018 [2018] FJCA 172 and State v Vakarau AAU0052 of 2017:4 October 2018 [2018] FJCA 173, Sadrugu v The State Criminal Appeal No. AAU 0057 of 2015: 06 June 2019 [2019] FJCA87 and Waqasaqa v State [2019] FJCA 144; AAU83.2015 (12 July 2019). This threshold is the same with timely leave to appeal applications against conviction as well as sentence. 

[6] 	Further guidelines to be followed for leave to appeal when a sentence is challenged in appeal are well settled (vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013] FJSC 14; House v The King [1936] HCA 40;  (1936) 55 CLR 499, Kim Nam Bae v The State Criminal Appeal No.AAU0015 and Chirk King Yam v The State Criminal Appeal No.AAU0095 of 2011). The test for leave to appeal is not whether the sentence is wrong in law but whether the grounds of appeal against sentence are arguable points under the four principles of Kim Nam Bae's case. For a ground of appeal timely preferred on sentence to be considered arguable there must be a reasonable prospect of its success in appeal. The aforesaid guidelines are as follows.

	(i) Acted upon a wrong principle;
(ii) Allowed extraneous or irrelevant matters to guide or affect him;
(iii) Mistook the facts;
(iv) Failed to take into account some relevant consideration. 
	
Grounds of appeal 

1.	THAT the learned sentencing Magistrate erred in law and in fact when he failed to give adequate and proper discount for the early guilty plea.

2.	THAT the learned Magistrate erred in law and in fact when he failed to sentence the appellant on the first occasion which was in 2012 when the appellant pleaded guilty breaching section 221 of the Criminal Procedure Decree, 2009.

3.	THAT the Learned Magistrate erred in law and in fact when he did not guide himself according to the sentencing guidelines in regard to section 4(2)(f)(g)(j) of the Sentencing Penalties Decree, 2009 

4.	THAT the learned Magistrate failed to give the appellant an opportunity to be heard on the issue of non-parole and therefore prejudiced the appellant to respond to the manner of sentencing meted out by the sentencing court. 

5.	THAT the sentence is completely harsh and excessive in all circumstances of the case.

01st ground of appeal

[7]	The learned Magistrate had reduced 01 year on account of the guilty plea though it had not been tendered at the earliest possible opportunity.  The appellant seems to argue that he may have been entitled to a 1/3 discount because of the guilty plea. I do not agree; not in this case of aggravated robbery. This is not the current thinking of the law.  

[8]	In Balaggan  v  State [2012] FJHC 1032; HAA031.2011 (24 April 2012) Goundar J. had the occasion to comment on 1/3 discount for an early guilty plea as follows. 

	‘[10] This ground is misconceived. I am not aware of any law that says that a first time offender is entitled to one-third reduction in sentence. But, I am aware that as a matter of principle, the courts in Fiji generally give reduction in sentences for offenders who plead guilty. In Naikelekelevesi v State [2008] FJCA 11; AAU0061.2007 (27 June 2008), the Court of Appeal stressed that guilty plea should be discounted separately from other mitigating factors present in the case.
	[11] The weight that is given to a guilty plea depends on a number of factors……………….
	‘Encouragement will be given to early pleas of guilty only if they lead (and are seen to lead) to a substantial reduction in the sentence imposed. That does not mean that the sentencing judge should show a precisely quantified or quantifiable period or percentage as having been allowed. Indeed, it is better that it not be shown; that was the point of this Court's decision in Beavan at pp14-15. As was said in that case – discounts for assistance given to the authorities to one side – it is both unnecessary and often unwise for the judge to identify the sentence which he or she regards as appropriate to the particular case without reference to one factor and then to identify the allowance made which is thought to be appropriate to that particular factor."
	[12] The appellant's guilty plea was clearly taken into account as a mitigating factor.’

[9]	As argued by the appellant, a discount of 1/3 for a plea of guilty willingly made at the earliest opportunity was earlier considered as the ‘high water mark’ in Ranima v State [2015] FJCA17: AAU0022 of 2012 (27 February 2015) but it had not been regarded as an absolute benchmark in subsequent decisions such as Mataunitoga v State [2015] FJCA 70; AAU125 of 2013 (28 May 2015). The Supreme Court dealing with Ranima said in Aitcheson v State [2018] FJCA 29; CAV0012 of 2018 (02 November 2018)

   	‘[15] The principle in Rainima must be considered with more flexibility as Mataunitoga indicates. The overall gravity of the offence, and the need for the hardening of hearts for prevalence, may shorten the discount to be given. A careful appraisal of all factors as Goundar J has cautioned is the correct approach. The one third discount approach may apply in less serious cases. In cases of abhorrence, or of many aggravating factors the discount must reduce, and in the worst cases shorten considerably.’

02nd ground of appeal

[10]	The appellant complains that the learned trial judge had failed to sentence him on the first occasion in 2012 when he pleaded guilty breaching section 221 of the Criminal Procedure Decree, 2009. There is no indication at all in the sentencing order that the appellant had pleaded guilty in 2012. Unless the full appeal record shows that the appellant had in fact pleaded in 2012 and not in May 2016 his complaint has no factual basis. I do not have the summary of facts tendered by the prosecution either.  

03rd ground of appeal

[11]	The trial judge had applied the sentencing tariff of 08-14 years following State v Manoa [2010] FJCA 409: HAC 061 of 2010 (06 August 2010). However, it had already been revisited in Wise v State [2015] FJSC 7; CAV0004.2015 (24 April 2015) where the sentencing tariff was set at 08-16 years of imprisonment in a situation where the accused had been engaged in home invasion in the night with accompanying violence perpetrated on the inmates in committing the robbery. I do not see why the same tariff should not apply to the current case involving an invasion of business premises in broad daylight with accompanying violence.

[12]	The learned Magistrate had taken the lowest point of 08 years as the starting point [even more leniently than advised in Koroivuki v State [2013] FJCA 15; AAU0018 of 2010 (05 March 2013) which suggested to take the lower or middle range of the tariff as the starting point] ending up with the final sentence of 08 years which is still at the lowest end of the tariff range and could be regarded as lenient.

[13]	The learned Magistrate had also considered guidance given in State v Rokonabete [2008] FJHC 226: HAC 118 of 2007 (15 September 2008) on matters to be considered when assessing the seriousness for any type of robbery. He had stated that he was taking into account the mitigation submitted by the counsel for the appellant and reducing 02 years for those mitigating factors most of which, if not all, were personal circumstances that could not have been properly considered as mitigating factors thereby affording the appellant a discount he probably did not deserve. The learned Magistrate had also reduced further 01 year on account of the guilty plea though it had not been tendered at the earliest possible opportunity. The appellant was not a first offender having had three previous convictions including one of robbery with violence thus not being entitled to any discount on account of previous good character.  
[14]	Therefore, the learned Magistrate cannot be said to have not guided himself according to the sentencing guidelines set out in section 4(2) (f), (g) and j) of the Sentencing Penalties Decree, 2009.

	 04th ground of appeal

[15]	The appellant argues that he was not given an opportunity to be heard on fixing the non-parole period and had he been given such an opportunity he could have persuaded the learned Magistrate not to have imposed a non-parole period in terms of then section 18(2) of the Sentencing and Penalties Act, 2009. 

[16]	As it existed then (and clearly now), section 18(1) of the Sentencing and Penalties Act, 2009 mandated a non-parole period to be fixed when the sentence was more than 02 years with no discretion to the sentencing judge. The non-parole period so fixed must be at least 06 months less than the term of the sentence [see section 18(4)]. Considering the nature of the offence or the past history of the appellant, discretion exercised by the trial Magistrate not to impose a non-parole period [section 18(2) now stands repealed by Corrections Service (Amendment) Act 2019] was absolutely justified.

[17]	In Natini v State AAU102 of 2010: 3 December 2015 [2015] FJCA 154  the Court of 	Appeal said on the operation of the non-parole period as follows:

	“While leaving the discretion to decide on the non-parole period when sentencing to the sentencing Judge it would be necessary to state that the sentencing Judge would be in the best position in the particular case to decide on the non-parole period depending on the circumstances of the case.”
	‘.... was intended to be the minimum period which the offender would have to serve, so that the offender would not be released earlier than the court thought appropriate, whether on parole or by the operation of any practice relating to remission’.

[18]	The Magistrate had sentenced the appellant to a sentence of 08 years of imprisonment with a non-parole period of 05 years which is legal, more than fair and reasonable. The purpose of fixing a non-parole is given in Tora v State CAV11 of 2015: 22 October 2015 [2015] FJSC 23 and Raogo v The State CAV 003 of 2010: 19 August 2010 referring to the legislative intention behind a court having to fix a non-parole period as follows.

	"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."

[19]	There is nothing to indicate that the learned Magistrate had prevented the appellant from making any submission on the question of imposing a non-parole period. His counsel had indeed made submission on the sentence. There was no legal requirement to afford another separate opportunity for the appellant to make submission on whether to impose or not to impose a non-parole period. It should have been part of mitigating submissions. The nature of the offence and the past history of the appellant certainly did not justify acting under then section 18(2) of the Sentencing and Penalties Act, 2009. In fact, the appellant had got a rather lenient non-parole period.
 
05th ground of appeal

[20]	The learned Magistrate had stated that the fact that the offence was committed in a group was an aggravating factor. It terms of section 311(1)(a) of the Crimes Act, 2009 one of the ways in which the offence of robbery becomes aggravating robbery is when the robbery is committed by a person in company with one or more other persons. Thus, in this instance the fact that the appellant had committed the robbery in company with three others had made him liable for the offence of aggravating robbery. Therefore, it cannot be counted as an aggravating factor, for it is part of the offence of aggravating robbery thus constituting a sentencing error. The issue could be whether addition of 03 years on account of aggravating factors which also included the fear instilled in the victims of the crime, planning and the premises being a business establishment could be justified when the element of it having been committed in a group is excluded. Therefore, as a question of law this matter could be considered by the full court and no leave is therefore required in that regard. However, as a matter of formality I grant leave to appeal.    

[21]	The rest of aggravating factors seems to have been legitimately taken into account in increasing the sentence by 03 years. 

[22]	However, the ultimate success of the appellant’s appeal would depend on the following observations by the Supreme Court in Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006). 

	‘……. It is the ultimate sentence that is of importance, rather than each step in the reasoning process leading to it. When a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step in the reasoning process that must be considered. Different judges may start from slightly different starting points and give somewhat different weight to particular facts of aggravation or mitigation, yet still arrive at or close to the same sentence.’.

Order 

1.	Leave to appeal against sentence is allowed.

						
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL