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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT
CRIMINAL APPEAL NO. AAU 067 OF 2016
(Magistrates Court No. CF 493 of 2014)
BETWEEN
THE STATE
Appellant
AND
SAILOSI LIKU
Respondent
Coram : Gamalath, JA
Prematilaka, JA
Bandara, JA
Counsel : Ms S. Tivao for the Appellant
Mr M. Fesaitu for the Respondent
Date of Hearing : 10 February, 2022
Date of Judgment : 03 March, 2022
JUDGMENT
Gamalath, JA
Preliminary Observations
[1] In this appeal, Director of Public Prosecutions is seeking the intervention of the Court to resentence the respondent ,the reason being that according to DPP, considering the seriousness of the offence for which the respondent was convicted, i.e. a charge of Robbery contrary to section 311 (a) of the Crimes Act No. 44 of 2009, following a night home invasion, the sentence of imprisonment imposed by the trial Magistrate was inadequate and not in keeping with the policy on sentencing in similar situations. DPP urges, that this may be rectified by resentencing the respondent, notwithstanding the fact that the respondent had already completed the sentence in prison and as at present is breathing free air for almost four years. Moreover, referring to the supplementary submissions of DPP the respondent is leading a life without any known blemish and the learned counsel for the respondent informed the Court that the respondent is 30 years of age now and is a father of two young children, certainly must be below 5 years, (the respondent was 23 years when he committed the offence and was in jail for about 3 years) and is the sole bread winner of the family. At the outset I must state that even if the Court is inclined to consider favorably the application for resentencing as urged by DPP, in doing so there are other obvious factors that cannot be grossly overlooked by this Court in this somewhat complex situation. As far as sentencing is concerned, it is not merely a mechanical process involving a mathematical approach alone. It is an art in which the multifaceted human issues coupled with societal factors play a significant role. As once said by Lord Lane “However, it must always be remembered that sentencing is an art rather than a science, that the trial judge is particularly well placed to assess the weight to be given to various competing considerations and that leniency itself is not a vice. That mercy should season justice is a preposition soundly based in law as in literature” per Lord Lane C.J. , Attorney General’s Reference ,No 4 of 1989, 11 Cr.App.R.(S) 517.
In the Magistrates Court
[2] On the inspection of the Court Record, the case against the respondent was tried in the Magistrates Court pursuant to an extended jurisdiction being vested under section 4(2) of the Criminal Procedure Act. Most importantly, at the hearing before the learned Magistrate, on 18th April 2016, the respondent changed his plea and entered a guilty plea to the charge. In making submissions on mitigation it was submitted that the respondent was the sole bread winner who was looking after his elderly father , expressed penitence ,accepted the fact that he was intoxicated while committing the offence , and considering the fact that him being a youthful offender a sentence of 9 months imprisonment was begged for.
[3] In his sentencing order the learned Magistrate, having referred to the fact that despite the indictable character of the alleged offence of Robbery following home invasion, the State had opted to refer the case against the respondent to be tried before the Magistrates Court, and drew his attention to the attendant circumstances of the case. He was guided by the principles found in State v. Sailosi Ralago Volivale [2009]HAC 30 (A)05S, 18 June 2009. He picked 5 years as his starting point. Having considered the fact that the respondent pleaded guilty to the charge and taken into consideration the other facts in mitigation , he finally settled the sentence at 38 months (3 years and 2 months) point with a non- parole sentence of 24 months (2years).
[4] As can be seen, the respondent was originally indicted in the High Court of Labasa and on a decision taken to invest the magistrate with jurisdiction on 24th November 2014, the matter was transmitted to the Resident Magistrate and the State was represented in the High Court whilst that was being done. (p127 of the record). Consequently, the learned Magistrate assumed jurisdiction to hear the case on 15th December 2014 under section 4(2) of the Criminal Procedure Act (Decree), which reads as follows;
“Notwithstanding the provisions of sub-section (1), a judge of the High Court may by order under his or hand and the seal of the High Court , in any particular case or class of cases, to invest a magistrate with jurisdiction to try any offence which in the absence of such order , would be beyond the magistrate’s jurisdiction”.
In investing the jurisdiction, what are the guiding principles that should be followed is not clear, save that this must be one of the mechanisms in use to effectively curb the backlog of cases pending in the High Courts. Although the charge against the respondent was a one of Aggravated Robbery under section 311(1)(a) of the Crimes Decree o 44 of 2009, which according to law was to be tried on indictment , using his discretionary powers vested under law the learned High Court Judge transmitted the case to the resident magistrate. In his sentencing order the learned Resident Magistrate had acknowledged the fact that the matter before him, under normal circumstances, should have been tried on indictment, (see p.53). Notwithstanding the powers vested in him to transmit the case back to the High Court for a sentence that deemed as compatible with law, the learned Magistrate, after having given reasons, imposed the impugned sentence, which the respondent had already duly completed, almost four years back.
[5] Having correctly referred both to the aggravating and mitigating circumstances the learned Resident Magistrate placed the starting point at 5 years. The learned Magistrate stated that,
“From a 5 year starting point. 5 ½ years for critical role in ensuring the joint criminal enterprise of Burglary (sec 299 (a) & (b) and Robbery with violence (sec 293 (1)) was successful, for a cowardly home invasion violating the privacy of a family, total lack of respect towards victim’s property and personal enjoyment of their rights in their own home;...Para [12] Accordingly , in this case, I select 5 years (60) months ) imprisonment as my starting point. In view of the above aggravating factors, I increase the sentence by 6 months to arrive at an interim total at of 66 months”.
[6] What becomes demonstrable from the material above is that the mechanisms involved in dealing with the convicted respondent had happened as prescribed by law and any error in the quantification of the sentence could have been corrected by the intervention of the State apertures had there been a degree of promptness that it warrants.
On the Arguments
[7] Another aspect that comes to my mind in dealing with this appeal is the operation of section 4(1) of the Sentencing and Penalties Act, 2009, Cap 017B, which deals with the Sentencing Guidelines; Section 4(1) o the Act reads as follows;
“The only purpose for which sentencing may be imposed by a court are –
(a) To punish offenders to an extent and in a manner which is just in all the circumstances. (emphasis added)
(b) To protect the community from offenders;
(c) To deter offenders or other persons from committing offences of the same or similar nature;
(d) To establish conditions so that rehabilitation of offenders may be promoted or facilitated;
(e) To denounce that the court and community denounce the commissions of such offences; or
(f) Any combination of these purposes.”
[8] Having regard to the above policy and principles in sentencing, I am mindful of the fact that it defines clearly the parameters within which the exercise of judicial powers should be carried out in relation to the imposition of sentences of imprisonment. Expecting a sentencing court to adopt a method which is “just in all the circumstances”, the law operates in a manner that demands a holistic view which is in harmony with the dicta of Lord Lane where the quality of mercy is also to be considered as an essential ingredient in forming the final out- come of a sentence.
[9] The State has, in the Supplementary Submissions to the full Court, stated in paragraphs 15 and 16 that;
“15. In deciding the fate of the respondent there are a number of factors to consider ranging from the rights of the respondent to the rights of the complainants. There has been a crime that has been committed, a serious crime, there needs to be a balancing of right to ensure that justice is met.
16. On the spectrum we have rights of the respondent, he has already served his sentence, moved on with his life and tried to make something of himself. Further he has had no other matters since this one is outlined in his updated previous records.”
[10] I have no divergence of opinion with the above submission and in fact I find a lot of common ground with my thinking in it. However, in attaining the ideal above one should have recourse to the available, legally acceptable tools at our disposal and one such important tool in my view is the “Victim Impact Statement”, which a court should try to obtain before a finality is arrived at with regard to the appropriate length of a sentence. As prescribed in section 306 of the Criminal Procedure Code, a Victim Impact Statement would have become quite handy in striking a balance between the competing parties involved in a case.
Section 306 of the Criminal Procedure Code reads as follows:
“306. The Court may, before passing sentence receive such evidence as it thinks fit, in order to inform itself as to the sentence proper to be passed.”
Based on the section it had been held that ‘It is desirable that the court hears some form of evidence about the impact of the crime on V. Victim impact statements are not customary in Fiji, although the CPC allows the court to hear any evidence it wishes to assist in the sentencing process. This is regrettable. The impact of the offending on V is directly relevant to the sentence. Further, to force the offender to hear of such impact becomes an important part of holding him or her accountable. It is the confrontation of the offender, of the consequences of his or her criminal conduct. Per Shameem, J in Avikash Ram v State [2005] HAA 62/05S 15 July 2005.’
[11] Having perused through the court record I cannot find any initiative taken to call for a victim impact statement before the sentence was prescribed in this case. Had such a statement been available the competing forces involving the criminal justice system would have found a basis through which a balance could have been struck to meet the requirements of justice. Referring to paragraph [6] above, where I have quoted from the submission of the State, in my view that the much desired goal of achieving a rights based balancing process between the competing parties to the case would have been achieved had the learned Magistrate called for a victim impact statement before prescribing the sentence. Anyway, the respondent is not to be faulted for its absence.
[12] In the Submission of the State, I find the citation from Attorney-General ‘s Reference No 33 of 1997 (Philip Lee McGinn), Court of Appeal, The Lord Chief Justice, Mr Justice Potts and Mr Justice Butterflied October 2, 1997 sitting in judgement.
The offender in that application was one Philip Lee McGinn, who was born on August 24, 1974 and was 23 of age when the application came up for hearing. He had pleaded guilty to causing grievous harm to Jason Edwards, aged 26. He had also pleaded guilty to assault occasioning actual bodily harm on Collin Williams, aged 31.
On June 12, 1997 he was sentenced on count 1 to 240 hours’ community service and on another count concurrent term of 60 hours’. The Attorney-General appealed against the community sentence of 240 hours’ on the basis the sentence was unduly lenient. Leave was granted to the reference. The important relevance of the pronouncement of His Lordships is how they dealt with the issue of re-sentencing of Philip Lee McGinn, who at the time of the Attorney-General’s reference had already served the community sentence completely.
Lord Bingham C.J. (one of the most illustrious jurists) held;
“It would appear to us that in the ordinary way, and bearing in mind, that it is an Attorney-General’s reference involving an element of double jeopardy, the ordinary course would be to substitute a sentence of 12 to 15 months’ imprisonment. Our attention is, however, drawn to the fact that the offender has, in fact, served the complete period of his community service order, and has apparently done so to the complete satisfaction of the authorities. That is not something which protects him against the substitution of a custodial sentence, as the court has previously pointed out. But it is in our judgment something that should be reflected in any custodial sentence that we were minded to substitute. Accordingly, it would follow that, unless the successful completion of this community service order were to be ignored, the appropriate sentence of custody to be substituted would fall somewhere below the level we have indicated. That, it is submitted, would bear particularly heavily on the offender since, having braced himself to face a custodial sentence, and having mercifully from his point of view escaped it, and having performed the full community service obligation imposed upon him, he has now succeeded in obtaining full-time employment to which he is now devoting himself. If any significant custodial sentence were imposed on the offender there would be an increased difference between his punishment and that of his co-defendant.
We have been greatly exercised by the facts and circumstances of this case, since we have no doubt that in virtually every case of this kind custodial sentence is necessary if conduct of this kind is to be adequately discouraged and public confidence maintained. We are extremely anxious that nothing we way should lead to the belief that such conduct is adequately punished by any sentence short of custody. The facts and circumstances of this case are however, as it now appears before us, very unusual. We bear in mind that the offender, if now sentenced to custody would be the appropriate term, would only be required to serve half of that period and we have to ask ourselves whether in all these circumstances the public interest would be served by sending the offender to prison for an effective period of some six months or less. With considerable hesitation, and some apprehension that our decision may be misunderstood and misapplied, we conclude that in all the circumstances it would not be appropriate to substitute a sentence of custody of this offender. In doing so we have, we hope, made it clear as we can that we do not wish to appear to sanction the imposition of community service orders in cases of serious violence such as this. This is, however, a reference.
We are not in the same position as the sentencing court and in the circumstances we conclude that we should not substitute any other penalty.”
[13] In my view this judgment is supportive of the fact that there should be reluctance in resentencing a person who had already served sentence. In relation to the instant appeal another issue that comes up to my mind is whether the sentence of imprisonment imposed on Sailosi Liku is arguably unduly lenient? It was a custodial sentence of almost three years which he had served with a mandatory sentence of 2 years and in the circumstances is it justifiably correct to argue, that while acknowledging its incompatibility with the prescribed standard tariff for a case of robbery, (provided the trial was in the High Court), that the sentence was unduly lenient?
[14] In the Attorney-General’s Reference Nos,30 and 31 of 1992 (Garry Roger James Godden and Steven John Boosey) Lord Taylor C.J. at p389 stated that “.... This Court will not interfere with a sentence merely because it is somewhat lenient, or because it is more lenient than the sentence this Court might have passed were it sitting at first instance. The Court will only interfere where the sentence is unduly lenient, that is to say, outside the bracket of sentences which a judge could reasonably impose on the facts presented before him.”
The above dicta is in relation to a case in which two different drivers were both charged and convicted of the death of one person following an accident . In relation to the imposition of a revised sentence as pleaded by Attorney-General the court observed that “...That being so we also bear in mind that, when we consider what sentence ought to be substituted , we should have in mind that these offenders have already been sentenced before. They are being brought up for the second time to be sentenced further and they have had the added suspense of not knowing what the outcome may be, and the added anguish of having to come to Court and have their sentences amended”
This is reminiscence of the words of wisdom of Lord Lane “that mercy should season justice is a proposition soundly based in law as in literature” (supra)
[15] In the instant appeal, the sentencing magistrate had laid down in clear terms the factors upon which he placed reliance in arriving at the impinged sentence. Given the maximum period of imprisonment that a magistrate can imposed is 10 years and further considering the fact that he placed five years as his starting point, I am uncertain if he had exercised his powers irrationally. (see p. 52)
[16] In a similar case as in the instant appeal, the Court of Appeal in the case of The State v. Timoci Tikina et all, (Criminal Appeal No AAU 080 of 2013, High Court Case No. HAC 005 of 2011), the appeal for resentencing by the DPP was not allowed .That was a case in which the State sought the intervention of this Court to resentence a person who had already served the non-custodial sentence of “release after conviction” in terms of section 44(2) and (3)of the Sentencing and Penalties Act ( Chap.17b). The main thrust of the argument of the State in the appeal against the sentence was based on its inadequacy and despite the conviction for charges of Aggravated Robbery and Aggravated Burglary, under sections 311(1) (a) and 313(1)(a) of the Crimes Act No 44 of 2009 respectively, for which the accused in that case pleaded guilty , the trial magistrate had imposed a non-custodial sentence. After three years from the conviction the appeal against the sentence came up before the Court of Appeal with a prayer to resentence the respondents (convicts).Taking the period involved between the expiry of the sentence and the hearing of the appeal the Court did not allow the appeal.
I wish to draw another observation in this judgment by Prematilaka J in which he says;
“[32] As a final word of advice, I would like to caution that it is always desirable and advisable for a Magistrate who tries offences under extended jurisdiction under 4(2) of the Criminal Procedure Code to be mindful of the sentencing powers of the Magistrates Court and if it could be reasonably contemplated upon entering a conviction that the appropriate sentence would go beyond its powers, to transfer the person convicted by the Magistrates Court to the High Court for sentencing and greater punishment in terms of section 190 of the Criminal Procedure Act. Such a course of action would obviate appeals such as the present one by the State and make the offenders serve an appropriate sentence in the end without getting away with a totally inadequate sentence.”
[17] In the final analysis, it is a purported error on the part of the sentencing judge that comes under scrutiny in an appeal of this nature. It is the law as the maxim states “acteus curiae neminem gravabit – an act of the court shall prejudice no man”. Commentary found in the Brooms Legal Maxim 7th edition page 97 reads, that “this maxim is founded upon justice and good sense and affords a safe and certain guide for the administration of the law.”
[18] In the circumstances the conviction and the sentence against the respondent remains intact. The appeal for the re-sentencing of the respondent is not allowed.
Prematilaka, JA
[19] I have read in draft the judgment of Gamalath, JA and while agreeing that the respondent should not be resentenced and made to suffer an additional period of incarceration at this stage, I would like place some of my own observations on the State’s appeal.
[20] The respondent with another had been arraigned in the Magistrates court of Labasa exercising extended jurisdiction on a single count of aggravated robbery contrary to section 311(1)(a) of the Crimes Act, 2009 committed on 24 October 2014 regarding two mobile phones and one digital camera all to the value of $2200.00
[21] He had pleaded guilty to the charge. The Magistrate convicted and sentenced the respondent on 30 May 2016 to 38 months of imprisonments (03 years and 02 months) with a non-parole period of 24 months.
[22] The appellant being dissatisfied with the sentence imposed on the respondent had filed a timely notice of appeal against it containing a single ground of appeal seeking to have the sentence quashed and another sentence substituted therefor in terms of section 23(3) of the Court of Appeal Act.
[23] The single judge of this court allowed leave to appeal against sentence on 28 April 2020 on the following ground of appeal.
‘THAT the sentence is too lenient when the facts reveal a violent home invasion deserving a higher starting point and that too much weight has been afforded to the defendant’s mitigation’
[24] The evidence of the case as stated by the State reveals that the respondent and another had entered the home occupied by the 56-year-old complainant, his 55-year-old wife and 79-year-old father around 2.00 a.m. on 24 October 2014.When the complainant had woken up and confronted the respondent, he had punched him on his face thrice making him unconscious. His wife too had been hit twice on her face by the respondent whose accomplice had covered her face with a pillow. Thereafter, the complainant’s father had been slapped twice on his face by the respondent. All three inmates of the house had suffered injuries due to the respondent’s assault. Thereafter, the respondent and his accomplice had fled the house with two mobile phones and a digital camera belonging to the complainant to the combined value of $2200.00 .
[25] Following Nawalu v State CAV 0012 of 2012: gust 2013 2013 [2013] FJSC 11 concerning a spa robberieseries, someequenisions of the Supreme Court and the Court of Appe Appeal had taken the tariff for aggravateavated robbery as 10-16 years [see Nivalu v State CAV 027 of 2014: 22 October 2015  [2015] FJSC 22 - two persons armed with a cane knife entered a gas station and took away a mobile phone, laptop andy after threatening the gase gas station attendant); Mani v State AAU0087 of 2013:14 September 2017 [2017] FJCA 119; Waisele v State AAU0081 of 2013: 30 November 2017 [2017] FJCA 136 - an aggravated robbery in the form of home invasion in the early hours of the day by a group of offenders armed with offensive weapons. However, following the clarification the Supreme Court provided in Wise v State CAV0004 of 2015: 24 April 2015 [2015] FJSC 7 for a single act of home invasion or a similar offence the sentencing tariff has been taken consistently as between 08-16 years.
[26] The Supreme Court in Wise v State (supra) dealt with aggravated robbery under section 311(1)(a) of the Crimes Act, 2009. The factual background in
[6] At around 2.30am he heard the sound of smashing windows. He went to investigate and saw the door of his house was open. Three persons had entered. The intruders were masked. Initially Mr. Ram was punched and fell down. One intruder went up to his wife holding a knife, demanding her jewellery. There was a skirmish in which Mr. Ram was injured by the knife. Another of the intruders had an iron bar.
[7] The intruders got away with jewellery worth $550 and $150 cash. Mr. Ram went to hospital for his injuries. He had bruises on his chest and upper back, and a deep ragged laceration on the left eye area around the eyebrow, and another laceration on the right forehead. The left eye area was stitched.’
[27] According to Wise (i) offence committed during a home invasion, (ii) in the middle of the night when victims might be at home asleep, (iii) carried out with premeditation/some planning, (iv) committed with frightening circumstances/ smashing of windows, damage to the house or property, or the robbers being masked, (v) the weapons in their possession were used and inflicted injuries to the occupants or anyone else in their way, (vi) injuries were caused which required hospital treatment/stitching and the like, or which come close to being serious and (vi) the victims frightened were elderly or vulnerable persons such as small children, are some additional aggravating factors which will lead to enhance the sentence further. Obviously, this is a non-exhaustive list.
[28] Therefore, it is clear that the aggravated robbery committed by the respondent with another was very similar to the offending in Wise and many, if not all, of the aggravating features identified by the Supreme Court were also present in this case well.
[29] The maximum sentence for aggravated robbery under section 311(1)(a) of the Crime Act, 2009 is 20 years. The appellant argues that the tariff applicable to the aggravated robbery in the form of a home innovation was set out in Wise v State (supra) as 08-16 years of imprisonment and the learned Magistrate had erred in not following Wise.
[30] The respondent agrees that the tariff set in Wise was applicable to the respondent and the sentence was not proportionate to the facts of the case but argues that the powers of sentencing of the Magistrate is regulated by section 07 of the Criminal Procedure Act and therefore cannot pass any sentence of imprisonment beyond 10 years. Thus, the appellant contends that the imprisonment of 03 years and 02 months was within the powers of the Magistrate. However, it is clear that the Magistrate could have gone up to 10 years.
[31] The powers of the Magistrates court in terms of sentencing is under section 07 of the Criminal Procedure Act. By virtue of section
4(3) of the Criminal Procedure Act, 2009, this is so even when the Magistrates Court exercises extended jurisdiction under section
4(2) of the Criminal Procedure Code.
[32] In State v Laveta [2019] FJCA 258; AAU65.2013 (28 November 2019) the Court of Appeal cautioned sentencing Magistrates as follows to avoid complaints of inadequate
sentences.
‘[39] As a final word of advice, I would like to caution that it is always advisable for a Magistrate........... to be ml of the sentencing cing powers of the Magistrates Court and if it could be reasonably contemplated upon entering a conviction that the possible sentence would be beyond its powers, to transfe person convicted by the Mahe Magistrates Court to the High Court for sentencing and greater punishment in terms of section 190 of the Criminal Procedure Act. Such a course of action would obviate appeals such as the present one by the State and make the offender serve an appropriate sentence in the end.
[33] I must also add that similarly, it is also the duty of the High Court judges to be mindful that cases where the accused, if convicted, deserves sentences beyond the sentencing powers of the Magistrates not to act under section section 4(2) of the Criminal Procedure Code and make orders to invest the Magistrates with jurisdiction to try such offences as has been the case in this matter.
[34] Upon an examination of the impugned sentencing order of the learned Magistrate, it is clear that he had acted upon a wrong sentencing tariff in selecting 05 years as the starting point without assigning any reason to do so contrary to Wise and then reducing 1/3 of the sentence for the early guilty plea without considering the serious nature of the offence as remarked in Aitcheson v State [2018] FJCA 29; CAV0012 of 2018 (02 November 2018). Both had resulted in the inadequate sentence imposed on the respondent.
[35] However, the question is whether at this stage this court should resentence the respondent and condemn him to further incarceration.
[36] It does not appear from the appellant’s submissions that, being aware of the gravity of the case, the State had requested the High Court judge not to transfer the case to the Magistrate Court to hear and determine. Had the state fully apprised the High Court judge of the severity of the offending he may not have extended his jurisdiction to the Magistrates court. It also does not appear that even when the appellant pleaded guilty the State had requested the learned Magistrate to transfer the case to the High Court for sentencing. In my view, in both respects the state had been remiss. This, lack of vigilance on the part of the appellant has played a big part in the eventual inadequate sentence. It does not even appear from the sentencing order that the State had assisted the Magistrate on the correct sentencing tariff set out in Wise.
[37] Secondly, the respondent’s co-accused who had pleaded guilty at a later date and according to the State’s further submissions (see paragraph [19], had been ‘properly’ sentenced to 05 years and 04 months of imprisonment with a non-parole period of 04 years. I cannot understand how this sentence also could be ‘proper’. Obviously, the State may not have appealed against the sentence imposed on the co-accused.
[38] Dealing with a State appeal against sentence in State v Volatui [2018] FJCA 154; AAU80.2015 (4 October 2018) the Court of Appeal refused to enhance the sentence and said
‘[31] However, the offending had taken place in August 2011, and he was convicted and sentenced on his pleading guilty on 15 August 2015. A period of 4 years had passed by during which time the Respondent would have had the mental anguish of facing a conviction having admitted the offence in his caution interview and assisting the Police in the investigation. Thereafter he had been incarcerated and has been so for about three years. These are factors which weigh in favour of the Respondent and would deter this Court from interfering with the sentence even though certain errors have been seen in the sentencing judgment which has been discussed above.
[39] In the current appeal the offending had taken place in 2014 and the respondent had been sentenced in 2016. He had been released from the prison having completed serving the sentence on 24 April 2018. Now, almost 04 years have lapsed since his return to normal life and both parties agree that he has led an unblemished life since then.
[40] Of course, on the other spectrum there have been instances where the Court of Appeal and the High Court have resentenced the respondents in State appeals against sentence.
[41] In State v Koi [2018] FJCA 127; AAU79.2014 (24 August 2018) the first respondent (Koi) and the second respondent (Tuwai) were each charged with one count of aggravated robbery contrary to section 311 (1) (a) of the Crimes Act 2009. Tuwai was also charged with four counts of breach of suspended sentence contrary to section 28(1) of the Sentencing and Penalties Act 2009. Both respondents pleaded guilty to the charges. On 02 June 2014 both respondents were convicted and sentenced on the count of aggravated robbery to be bound over for 12 months in the sum of $1,000.00. Tuwai was convicted and sentenced to 12 months imprisonment for the four counts of breaching suspended sentences. The Court of Appeal set aside the sentences imposed by the Magistrates Court and imposed on each respondent a term of imprisonment of 5 years with a non-parole term of 3 years for aggravated robbery with effect from the date of apprehension to serve these sentences and affirmed the sentence of 12 months imposed on Tuwai for breaching his suspended sentences to be served concurrently with the sentence imposed for aggravated robbery.
[42] State v Cavubati [2002] FJHC 327; HAA080 of 2001S (05 December 2002) is another example where the High Court quashed a suspended sentence and ordered a custodial sentence against the respondent.
[43] The courts have identified instances where sentences would be disturbed in appeal. ‘Unduly lenient’ or ‘manifestly
lenient’ sentences, error in principle in the sentence and in the absence of the sentence being altered public confidence would
be damaged are some instances (see State v Chand [1998] FJLawRp 14; [1998] 44 FLR 62 (14 May 1998); [1998] 44 FLR 62). Whether in all the circumstances the public interest would be served by sending the offender to prison [see State v Cavubati (supra)]
is another instance.
[44] In State v Chand (supra) Paine, J quoted from 1983 Australian article "Dismissal of Crown Appeals Despite Inadequacy of Sentence"
where 05 general categories under which the Australian Courts have refused to disturb lenient sentences on the basis of fairness
have been identified which, in my view, are of persuasive value. They are as follows.
1. Where there has been delay, particularly if the offender has complied with the term of a non-custodial sentence;
2. Where an unappealed sentence imposed on a co-offender is seen to create a penalty ceiling;
3. Infringement of the "totality" principle;
4. Where the inadequate sentence is seen to have a significant prospect of rehabilitating the offender;
5. Where imposition of the inadequate sentence was contributed to by lack of challenge by the Crown in the lower Court.
[45] I think almost all these considerations are in favour of this court not resentencing the respondent in this case.
[46] Accordingly, I agree that the respondent should not be resentenced and therefore, appeal should be dismissed.
Bandara, JA
[47] I have read the draft judgment of Gamalath, JA and agree with his reasoning and conclusions.
Order of the Court
The appeal for resentencing is dismissed.
Hon. Justice S. Gamalath
JUSTICE OF APPEAL
Hon. Justice C. Prematilaka
JUSTICE OF APPEAL
Hon. Justice W. Bandara
JUSTICE OF APPEAL
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