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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
Appellate Jurisdiction
CRIMINAL APPEAL NO. AAU 015 OF 2021
High Court No. HAC 060 of 2020
BETWEEN :
SAKIUSA TAKIRUA
Appellant
AND :
THE STATE
Respondent
Coram : Mataitoga, RJA
Counsel : Appellant in person
Mr R. Kumar for Respondent
Date of Hearing : 5 March, 2024
Date of Ruling : 21 March, 2024
R U L I N G
Brief Facts
“On the 25th of August 2020, at around 9pm, the Accused persons with another, forcefully entered into the house of a couple, the complainants in this case, Kamlesh Chand, school teacher, and Kajal Karishma Devi, in Seaqaqa. The couple also had another adult make cousin residing with them, Shalvin Chand also a school teacher.
The Accused persons with another approached the back door of the complainant’s house and struck the house with a hard object. They then forcefully entered the house. The Accused persons with another had broken into the house knowing that the couple had a lot of cash with them and intending to steal money from couple.
Once the Accused persons entered the house, they began threatening the occupants of the house. The Accused persons then attacked the occupants of the house namely the two males, Kamlesh who was at the sitting room - he was struck on the chin 3 times, while Shalvin was being beaten on the stomach with an iron rod. Both Kamlesh and Shalvin suffered injuries from the beatings.
The Accused persons were wearing masks. They demanded for money as they continued to assault the occupants of the house, namely the 2 men – Kamlesh and Shalvin. The occupants of the house then told them to take the money inside the van, which was $400. After taking that money, the Accused persons were all still not satisfied.
Then the Accused persons also entered the bedroom of Mrs Kajal Karishma Devi and demanded more money from her. After she gave them some money, they still demanded more and threatened to rape her daughter if she did not give them more. At that point, Shalvin was brought back into the room by the Accused persons, injured. The threats to Mrs Kajal by the Accused persons continued and she was ordered to lift her dress.
The couple’s daughter was siting awake on her bed when the Accused persons threatened to rape her if they were not given more money. The whole family was in complete shock and extreme fear.
Thus, the couple then brought out another brown envelope containing $7000.00 cash. The Accused persons kept all the adults in one room, closed the door and left them there, after stealing the $7000.00. A total of about $10,000.00 was stolen that day however, $8360.75 was recovered.
The Police were later contacted and investigations conducted. The appellants were both arrested and there were recoveries made. The appellants made their free and voluntary admissions to the Police about their involvement in the robbery.
The admissions and the specific roles they played are as per their record of interviews and the injuries sustained from the above attacks are as documented in the Fiji Police Force Medical Examinations form, that are attached.”
Kamlesh Kumar
Head – Hematoma 4 × 4 cm on scalp
Left Eye – swollen
Left Face – puncture wound actively bleeding, swollen and collection of blood
Hospitalized due to the seriousness of the injuries.
Kajal Karishma Devi
Face – swollen
Upper lip – bruises
Shalvin Chand
Left eyebrow – 1 × 1 cm laceration
Abdomen and chest – blunt trauma and tenderness
“[19] It is clear that the Court of Appeal will approach an appeal against sentence using the principles set out in House v The King (1936) 55 CLR 499 and adopted in Kim Nam Bae v The State [1999] FJCA 21 (Criminal Appeal No. AAU0015 at [2]. Appellate courts will interfere with a sentence if it is demonstrated that the trial judge made one of the following errors:
(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.
[20] When considering the grounds of appeal against sentence, the above principles serve as an important yardstick to arrive at a conclusion whether the ground is arguable. This point is well supported by a decision on leave to appeal against sentence in Chirk King Yam v The State Criminal Appeal No. AAU0095 of 2011 at [8]-[9]. In the present case, the learned judge's conclusion that the appellant had not shown his sentence was wrong in law was made in error. The test for leave is not whether the sentence is wrong in law. The test is whether the grounds of appeal against sentence are arguable points under the four principles of Kim Nam Bae's case.
Grounds of Appeal Against Sentence
“[26] The purpose of tariff in sentencing is to maintain uniformity in sentences. Uniformity in sentences is a reflection of equality before the law. Offender committing similar offences should know that punishments are even-handedly given in similar cases. When punishments are even-handedly given to the offenders, the public's confidence in the criminal justice system is maintained.
[27] In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this stage. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range.”
“[33] The concept of tariff that is hardened into the sentencing structure in Fiji seeks to ensure uniformity and consistency in sentencing. The selection of the starting point of the sentence, which is an important step in the process, in my view, is an opportunity where a great deal of consistency and uniformity can be infused into, on the basis of acceptable principles.
[36] His Lordship Brian Keith J., after relying on Seninolokula vs State [2018] FJSC 5; and, Kumar v State [2018] FJSC 30, said in Nadan v State (supra)
“The fact is, though, that we just do not know whether the judge in arriving at his starting point of 12 years had already reflected any of the aggravating factors, which caused him to go up to 15 years before allowing for mitigation. In case he had done that, and had, therefore, fallen into the trap of double counting.”
“[56] ... If judges take as their starting point somewhere within the range, they will have factored into the exercise at least some of the aggravating features of the case. The ultimate sentence will then have reflected any other aggravating features in the case as well as the mitigating features. On the other hand, if judges take as their starting point the lower end of the range, they will not have factored into the exercise aggravating factors and they will then have to factor into the exercise all the aggravating features of the case as well as mitigating features. Either way, you should end up with the same sentence. If you do not, not, you will know that something has gone wrong somewhere.
[57] ... First, a common complaint is that a judge has fallen into the trap of “double-counting”, i.e.: reflecting one or more of the aggravating features of the case more than once in the process by which the judge arrives at the ultimate sentence. If judges choose to take as their starting point somewhere in the middle of the range, that is an error which they must be vigilant not to make. They can only then use those aggravating features of the case which were not taken into account in deciding where the starting point should be.
[58] Secondly, the lower of the tariff for the rape of children and juveniles is long. Sentences of 10 years’ imprisonment represent long periods of incarceration by any standards. They reflect the gravity of these offences. But it also means that the many things which make these crimes so serious have already been built into the tariff. That puts a particularly important burden on judges not to treat as aggravating factors those features of the case which will already have been reflected in the tariff itself. That would be another example of “double-counting”, which must, of course, be avoided.”
“[4] The maximum penalty prescribed for aggravated robbery is 20 years imprisonment. In Wise v State [2015] FJSC 7; CAV0004.2015 (24 April 2015) the Supreme Court said at [25]-[27]:
[25] We believe that offences of this nature should fall within the range of 8-16 years imprisonment. Each case will depend on its own peculiar facts. But this is not simply a case of robbery, but one of aggravated robbery. The circumstances charged are either that the robbery was committed in company with one or more other persons, sometimes in a gang, or where the robbers carry out their crime when they have a weapon with them.
[26] Sentences will be enhanced where additional aggravating factors are also present. Examples would be:
(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, or some planning.
(iv) committed with frightening circumstances, such as the 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 as here
where the knife entered the skin very close to the eye.
(vii) the victims frightened were elderly or vulnerable persons such as small children.
[27] It is our duty to make clear this type of offences, will be severely disapproved by the courts and be met with appropriately heavy terms of imprisonment. It is a fundamental requirement of a harmonious civilized and secure society that its inhabitants can sleep safely in their beds without fear of armed and violent intruders.
[5] In the present case, apart from the statutory aggravation, there are additional aggravating factors. The robbery was committed during a home invasion. The offenders threatened a couple, their daughter and a male occupant with physical violence. They wore masks to conceal their identities. They frightened the occupants by striking their house with a hard object before gaining entry. They carried an iron rod with them. They struck two male occupants with the iron rod multiple times. The occupants sustained physical injuries. One occupant was hospitalized due to the injuries from the attack. The couple’s daughter was threatened with rape. The adult female occupant was forced to lift her dress and was humiliated. The robbery was pre-planned and then executed.”
[26] Once the court has identified the level of harm suffered by the victim, the court should use the corresponding starting point in the following table to reach a sentence within the appropriate sentencing range. The starting point will apply to all offenders whether they pleaded guilty or not guilty and irrespective of previous convictions:
| | ROBBERY (OFFENDER ALONE AND WITHOUT A WEAPON) | AGGRAVATED ROBBERY (OFFENDER EITHER WITH ANOTHER OR WITH A WEAPON) | AGGRAVATED ROBBERY (OFFENDER WITH ANOTHER AND WITH A WEAPON) | |
| HIGH | Starting point: 5 years imprisonment Sentencing range: 3-7 years imprisonment | Starting point: 7 years imprisonment Sentencing range: 5-9 years imprisonment | Starting point: 9 years imprisonment Sentencing range: 6-12 years imprisonment | |
| MEDIUM | Starting point: 3 years imprisonment Sentencing range: 1-5 years imprisonment | Starting point: 5 years imprisonment Sentencing range: 3-7 years imprisonment | Starting point: 7 years imprisonment Sentencing range: 5-9 years imprisonment | |
| LOW | Starting point: 18 months imprisonment Sentencing range: 6 months-3 years imprisonment | Starting point: 3 years imprisonment Sentencing range: 1-5 years imprisonment | Starting point: 5 years imprisonment Sentencing range: 3-7 years imprisonment | |
[27] Having identified the initial starting point for sentence, the court must then decide where within the sentencing range the sentence should be, adjusting the starting point upwards for aggravating factors and downward for mitigating ones. What follows is not an exhaustive list of aggravating factors, but these may be common ones:
[28] Again, what follows is not an exhaustive list of mitigating factors, but these may be common ones:
[29] Having decided on the appropriate sentence in this way, the Court should then reduce the sentence by such amount as is appropriate – first for a plea of guilty and then for the time the offender spent in custody on remand awaiting trial and sentence. If judges take these steps in the order I have identified, it is to be hoped that sentences will be more likely to fit the crime, and that undesirable disparities in sentences will be avoided.
[30] This methodology is new to Fiji. In the recent past the higher courts have usually only identified the appropriate sentencing range for offences. They have only infrequently in recent times assisted judges by identifying where in the sentencing range the judge should start. That has caused difficulties identified by the Supreme Court on a number of occasions: see, for example, Seninolokula v The State [2018] FJSC 5 at paras 19 and 20 and Kumar v The State [2018] FJSC 30 at paras 55-58. If this methodology is used, that problem is avoided. Indeed, there is, in my opinion, no reason why this methodology should be limited to “street muggings”, and it may be that thought will be given in the appropriate quarters to find cases to bring to the Court of Appeal for this methodology to be considered for sentencing for other offences.
ORDERS
Isikeli U Mataitoga
Resident Justice of Appeal
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