Bolawaqa v The State [1990] FJHC 58; Haa0086j.88s (25 July 1990)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 86 OF 1988

Between:

TAITUSI BOLAWAQA
Appellant

v.

THE STATE
Respondent

Appellant in Person
Mr. S. Senaratne for the Respondent

JUDGMENT

On the 28th of March 1988 the appellant was convicted and sentenced by the Nausori Magistrate Court after he pleaded guilty to the following charges:

(in order of commission)

(1) In Criminal Case No. 169/88: (New Year's day 1st January, 1988) For breaking into the Whistling Duck Tavern and stealing bar items including a large quantity of liquor, cold drinks, cigarettes, savouries, chewing gum and a radio cassette worth in toto $7,530.50. For this offence the appellant was sentenced to 2 years 9 months imprisonment;

(2) In Criminal Case No. 173/88: (5th March 1988) For taking and driving away a private motor vehicle registered No. AV684 whilst not being the holder of a driver's licence for which he was sentenced to an effective concurrent term of 9 months imprisonment and disqualified for 3 years; and lastly

(3) In Criminal Case No. 172/88: (9th and 10th March 1988) In which the appellant was convicted of 12 traffic offences arising out of his Unlawful taking and driving of 4 private motor vehicles. For these he was sentenced to a consecutive term totalling 38 months imprisonment and disqualified from driving or holding a driver's licence for a period of 2 years.

The total effective prison sentence the appellant was therefore required to serve was (33 + 38) = 71 months imprisonment or 5 years 11 months.

The appellant now appeals against his sentences on the ground that they are harsh and excessive having regard to his relative youth and various other mitigating factors that he complains were not properly taken into account by the learned trial magistrate when sentencing him.

However before dealing with the present appeals I am grateful to State Counsel for having drawn my attention to Cr. App. No. 30 of 1988 in which my learned brother Justice Jesuratnam dealt with the appellant's appeal against the sentence of 38 months imprisonment imposed in Cr. Case No. 172/88 by reducing it to one of 22 months imprisonment being a reduction of some 16 months.

That was on the 5th of August, 1988 almost 24 months ago and although my learned brother has not indicated when the reduced sentence was to take effect from the tenor of his judgment leaves me with little doubt that it was intended to relate back to the date of the appellant's conviction on the 28th of March, 1988 and remain consecutive to the sentences in Cr. Case Nos. 169 and 173/88.

Accordingly I am of the view that on the 5th of August 1988 the total sentence of the appellant was reduced from 71 months to (33 + 22) = 55 months imprisonment back-dated to the 28th of March, 1988.

I regret to say that it has been necessary to deal with the appellant's previous appeal in some detail because of the piece-meal manner in which the appellant's appeal against all 3 sentences have been dealt with by this court through I might add no fault of his own.

In this latter regard it must be pointed out to the court staff handling criminal appeals that where an appeal petition clearly shows on its face that it is an appeal involving several Magistrate Court files, then it is not proper to list the appeal for hearing in the absence of all the relevant Magistrate Court records.

If the above course is followed, and a careful reading of the appellant's petition would have revealed this, then these 3 appeals would not be heard piece-meal but more importantly, an appellate court would have the opportunity of assessing and dealing with the totality of an appellant's criminal behaviour and sentences in one judgment.

Unfortunately my learned brother has been deprived of that opportunity and although this court is now functus in the matter of the appellant's appeal against the sentence of 38 month imprisonment imposed in Nausori Cr. Case No. 173/88, nevertheless that is a factor that this court can bear in mind in determining this appeal.

In so far as the present appeal is concerned as already noted the sentence of 9 months imprisonment in Cr. Case No. 173/88 was made concurrent to that in Cr. Case No. 169/88 and therefore need not be considered separately.

If I may say so, on the face of it a sentence of 33 months imprisonment for the present offence of breaking into the Whistling Duck Tavern and stealing almost $8,000 worth of goods is not at all excessive on its own.

But when that term is added to one of 38 months the aggregate of 71 months is crushingly severe by any standard especially where the court is dealing with a young person such as the appellant who has just turned 21 years of age.

The appellant has already served 27 months of his sentence and professes to have learnt a salutary lesson from his experience in prison. He is obviously articulate and intelligent as his written and oral submissions clearly demonstrates and he expressed a strong desire to reform himself at the hearing of his appeal.

Needless to say the shockingly bad record of the appellant which includes numerous offences of breaking and larceny and even unlawful use of a motor vehicle clearly shows that neither of these offences are "new" to the appellant nor for that matter is prison life.

However the appellant is not to be sentenced on the basis of his past record but on the basis of the facts and circumstances of the present offences as earlier outlined.

Due regard must also be given to the "totality principle" which requires a court when sentencing an accused for a number of offences to take one last look at the sum-total of the sentences to see whether it correctly reflects the totality of the criminal behaviour and is not unjust or wrong.

In this instance I am satisfied that the aggregate of the consecutive sentences passed by the learned trial magistrate far exceeds the total criminality of the appellant's behaviour in the course of 2 separate months.

However I am unable to fault the decision of the learned trial magistrate in ordering that the sentences in Cr. Case Nos. 172/88 and 169/88 should be served consecutively. The offences are entirely unrelated both in nature and in time.

Accordingly the sentences in Cr. Case Nos. 169/88 and 173/88 remain unaltered and are to be served consecutive to the sentence in Cr. Case No. 172/88 (as reduced in Cr. App. No. 30 of 1988) making a total of (33 + 22) = 55 months imprisonment with effect from the 28th of March, 1988.

Of this sentence as already noted the appellant has already served half and in all the circumstances I propose to assist him to reform himself by ordering the unexpired portion of his sentence namely 20 months (with remission) to be suspended from today for the next 12 months. The order of disqualification however remains undisturbed at 3 years with effect from the 28th March, 1988.

The effect of this last order is that the appellant shall be released from prison today on a suspended sentence which hopefully will act as a constant "reminder" and an "incentive" for him to reform himself and stay within the law.

Furthermore the appellant is warned that if he should commit an imprisonable offence within the next 12 months he may be required to serve the suspended portion of his present sentence together with any other sentence that the court may see fit to impose for his re-offending.

(D.V. Fatiaki)
JUDGE

At Suva,
25th July, 1990.

HAA0086J.88S