Baxter v The State [1990] FJHC 20; Haa0043j.89s (14 February 1990)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NOS. 43, 86, 87 AND 106/89

Between:

VILIAME BAXTER
Appellant

v.

STATE
Respondent

Appellant in Person
Mr. R. Perera for the Respondent

JUDGMENT

On the 6th of March 1989 the appellant was convicted by the Suva Magistrate Court on his guilty pleas to several offences contained in the following Court files: (listed in order of commission of the offences)

(1) Criminal Case No. 217/88

Ct 1 - Throwing objects ) (Jan 1987)

Ct 2 - Larceny ) (Mar 1987)

Ct 3 - House Breaking, Entering )

and Larceny )

Ct 4 - Office Breaking, Entering ) (Aug/Sept 1987)

and Larceny )

Ct 5 - Shop Breaking, Entering )

and Larceny )

Ct 6 - Robbery with Violence )

Ct 7 - School Breaking, Entering )

and Larceny ) (Oct 1987)

Ct 8 - Robbery with Violence )

Ct 9 - Shop Breaking, Entering and ) (Jan 1988)

Larceny )

Upon his conviction the appellant was sentenced to concurrent terms of imprisonment of varying lengths with the longest being 18 months imprisonment.

(2) Criminal Case No. 793/88

2 Counts of Robbery with Violence (October 1987). Consecutive sentences of 12 months imprisonment imposed on each count making a total of 24 months imprisonment;

(3) Criminal Case No. 4/89

Assault with Intent to Commit Rape (January 1989) for which the appellant was initially sentenced on 3rd January 1989 to 18 months imprisonment suspended for 3 years and which was activated in full on the 6th of March, 1989;

(4) Criminal Case No. 285/89

Rape (February 1989) for which he was sentenced to 3 years imprisonment.

In the result the appellant was sentenced to an aggregate of (1 1/2 + 2 + 1 1/2 + 3) years imprisonment i.e. 8 years from the 6th of March, 1989.

The appellant now appeals against the total sentence of 8 years imprisonment on the grounds that it is harsh and excessive. He claims to have realised that he is wasting his life in jail and promises not to reoffend if he is permitted to return to his de facto wife and child.

The appellant is 27 years of age and has numerous previous convictions dating back to 1976 when he would have been a juvenile. In particular he has 10 previous convictions for Burglary and related offences for which he has received prison sentences of varying lengths.

To his credit the appellant has pleaded guilty to all the offences and although they were committed over a period of 2 years (Jan 1987 to Jan 1989) and were pending before the court, he asked that they all be dealt with together reinforcing the learned magistrate's observation that the accused: "now intends to lead a good and crime-free life".

Presumably the appellant had all his pending cases dealt with together on the same day in an effort to "make a clean breast of his criminal past" and whilst that is a commendable effort on the appellant's part, I cannot help noticing that all the offences in Files 2, 3 and 4 were committed whilst the charges in File 1 were still pending against the appellant who at the time was out on bail.

In this latter regard it is noteworthy that the appellant was convicted of Rape in File (4) within a month of his having been convicted of an offence of Assault with Intent to Rape for which he had received a relatively lenient suspended prison sentence. [See: File (3)].

Viewed in that light the appellant deserves little leniency from the Court.

I accept that custodial sentences were unavoidable in this case. I also accept that viewed in isolation the sentences are individually neither harsh or excessive. The aggregate or totality of the sentences however is another matter.

In this latter regard the 'totality principle' needs to be considered. This global principle has been stated in various way. Put simply it requires a court when sentencing an accused for a number of offences to take a last look at the 'total sentence' to see whether it correctly reflects the totality of the criminal behaviour and is not unjust or wrong.

Applying the principle to the present appeal I am in no doubt that the totality of the consecutive sentences is inappropriate albeit that it relates to a course of serious criminal behaviour committed over a period of 1 year. 8 years imprisonment is a harsh sentence in the context of an accused who is seeking to "wipe his slate clean".

Additionally such a sentence is likely to reduce any chance or rehabilitation and may also discourage an accused from pleading guilty as the appellant did in this instance.

I am willing to assist the appellant in his effort to reform himself. Needless to say if he does not at this age of 27 years then there is little hope for his future. However the appellant will not be released immediately.

The individual sentences imposed in the 4 Files remain unchanged but it is ordered that the sentence of 24 months in Criminal Case No. 793/88 is hereby ordered to be served concurrently with that imposed in Criminal Case No. 217/88.

The effect of this latter order is that the total sentence that the appellant must now serve is reduced by 2 years to 6 years with effect from the 6th of March 1989.

(D.V. Fatiaki)
JUDGE

At Suva,
14th February, 1990.

HAA0043J.89S