Chand v The State [1995] FJHC 148; Haa0035j.95b (20 September 1995)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 35, 36, 37 & 38 OF 1995

Between:

DEO CHAND
s/o Jadu Ram
Appellant

- and -

STATE
Respondent

The Appellant in person
Ms Laisa Laveti for the Respondent

JUDGMENT

On 16 June 1995 in the Magistrate's Court at Labasa the Appellant was convicted on his own plea for various offences in Criminal Case Nos. 91/94, 121/95, 401/95 and 402/95 and was sentenced to a total effective sentence of imprisonment for 5 years and 9 months.

The sentences on each of the four cases were to run consecutively details whereof are as follows:-

(a) In Appeal No. 38/95 (Criminal Case No. 402/95) for house-breaking entering and larceny on 1 June 1995 a sentence of 3 years' imprisonment.

(b) In Appeal No. 37/95 (Criminal Case No. 401/95) for house-breaking with intent to commit felony on 13 June 1995 12 months' imprisonment consecutive to sentence in 402/95.

(c) In Appeal No. 35/95 (Criminal Case No. 91/94) for house-breaking entering and larceny on 31 January 1994 12 months' imprisonment consecutive to sentence in 401 and 402/95.

(d) In Appeal No. 36/95 (Criminal Case No. 121/95) for larceny on 11 February 1995 9 months' imprisonment consecutive to sentences imposed in 401/95, 402/95 and 91/94.

Although the Appellant has filed a number of grounds (being the same for each of the five appeals) the main ground is that the total effective sentence is harsh and excessive bearing in mind the mitigating factors.

Since all the four appeals relate to this one main ground it will be convenient to deal with them together.

The appellant who is a 23 year old canecutter pleads for reduction of his sentences stating that they should have been concurrent.

The learned State Counsel concedes that the said sentence of three years in Criminal Appeal No. 38/95 is slightly on the high side. In that case there was a mitigating factor in that some articles were recovered.

I agree with Ms Laveti that the sentence of three years is high. The accused stands convicted of serious offences of similar nature. The offences in 37/95 and 38/95 were committed in June 1995 and concurrent sentences could have been given.

All the four charges, which were dealt with on the same day, are for a series of offences founded on somewhat similar facts. In such circumstances it is usual to impose concurrent sentences for the reason as stated by WIDGERY CJ in R v KASTERCUM (1972) 56 Cr. App. R. 298 at 300:

"The reason for that is because if a man is charged with several offences arising out of the same situation and consecutive sentences are imposed the total very often proves to be much too great for the incident in question."

But this is not a hard and fast rule for entirely different considerations apply where the offence committed although arising out of the same transaction are of a different character (RAM BHAJAN s/o RAM NARAYAN and REGINAM Criminal Appeal No. 57/78).

In this appeal I bear in mind the following passage from PRINCIPLES OF SENTENCING by THOMAS 2nd Ed. page 56 which is apt:

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is just and appropriate."

Also in ERNEST WHIPPY and REGINAM (Crim. App. 38 to 42/94) the Acting Chief Justice TUIVAGA (now Chief Justice) said:-

"Thus a court should be careful when dealing with a series of cases such as the present not to order a sentence to run consecutively to another sentence if the nett result is to inflate the overall effective sentence out of proportion to the offences concerned."

Although the Appellant has 18 previous convictions and which are mainly for breaking and entering, bearing in mind the above principles, the consecutive sentences in Case Nos. 37 and 38/95 were wrong and the sentence in 37/95 was excessive. I therefore set aside these sentences and substitute them with 18 months in each case concurrent one with the other. The sentences in Crim. App. 35/95 and 36/95 of 12 months and 9 months respectively are not disturbed.

The Appellant will therefore now serve a total of 3 years 3 months (made up of 12 months in 35/95, 9 months in 36/95 and 18 months in 37 and 38/95 concurrent.

The appeal is therefore allowed to the above extent.

D. Pathik
Judge

At Labasa
20 September 1995

HAA0035J.95B