Bakani v The State [1996] FJHC 171; Haa0014.96s (23 August 1996)

IN THE HIGH COURT OF FIJI
AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0014 OF 1996

BETWEEN:

MACIU BAKANI
Appellant

AND:

THE STATE
Respondent

Appellant in Person
Mrs. R. Olutimayin for the State

JUDGMENT

On the 12th of May 1995 the appellant and 2 others were charged in the Magistrate Court, Suva with an offence of Robbery With Violence. The appellant pleaded 'not guilty' to the offence whereas his co-accused admitted it and was subsequently sentenced to 5 years imprisonment.

After 5 months of adjournments for one reason or another, the appellant was tried and convicted and sentenced also to 5 years imprisonment. He now appeals against his sentence on various grounds which may be conveniently summarised under the following headings:

(1) Failure of Trial Magistrate to consider Appellant's Mitigating Factors;

(2) Harsh and Excessive in not considering a sentence of imprisonment which the appellant was already serving at the time; and

(3) Failing to consider the absence of use any actual violence or infliction of any injury in the commission of the crime; and

(4) Being unduly influenced by the appellant's record of previous convictions.

The facts of the case may be briefly stated as follows:

The appellant and his co-accused armed with a cane knife and a Pinch bar entered a supermarket during closing time and threatened the Store Manager who was counting the days takings and made off with $4,025.00.

This was clearly a pre-meditated crime involving threats of violence to innocent civilians and reinforced by the presence of dangerous weapons and although the trial magistrate said very little in sentencing the appellant to the maximum sentence or imprisonment he was empowered to impose, his earlier statements when sentencing the appellant's co-accused clearly demonstrates his thinking.

He said inter alia: (at p.8 of the record)

"Robbery with violence is a very serious offence when cane knife and pinch bars are used to threaten and force complainants to submit to robbery. A custodial deterrent sentence is called for to protect the public and recapture some lost business confidence.

A message ought to be sent out to all would-be robbers who intend on using violence on others."

I agree entirely with those utterances and sentiments and have nothing to add.

Quite plainly in my view having earlier sentenced the appellant's co-accused who had pleaded 'guilty', to 5 years imprisonment, the trial magistrate was constrained to sentence the appellant who had pleaded 'Not guilty', to an identical sentence thereby at least maintaining consistency in the sentences imposed on co-accused.

At the hearing of his appeal, the appellant impressed upon the Court the unfortunate circumstances of his early 'loveless' childhood and the sense of betrayal, conclusion and chronic feelings of enmity he had towards his parents. He accepts responsibility for his criminal past and claims to have reached a stage in his life where he realises the absurdity of his past decisions that have cost him his 'golden teenage years'.

The appellant is now 30 years of age and professes an 'honest and fair desire to reform himself and to join the human race again' and he pleads with the Court to give him 'another chance'.

The appellant has by all accounts, a bad record of previous convictions but somewhat surprisingly, none was for Robbery With Violence. He has clearly learnt little from his previous prison terms as he himself admits in his grounds of appeal. Having said that however, I am willing to give the appellant the chance' he so eloquently pleads for in the hope that his growing maturity of years and self -realisation ion of the futility and wastage of continuing in a life of crime will spur him to truly reform himself.

I am grateful to learned State Counsel for the careful and fair manner in which she presented and argued the State's response and for the well-researched and very helpful written submissions that she prepared and which has greatly assisted me in my deliberations in particular, I endorse State Counsel's concession that the trial magistrate did not consider the appellant's previous sentence of imprisonment before sentencing him to a further consecutive term of five years imprisonment. He was undoubtedly aware of that fact (See: Mitigation at p.14 of the record) but did not see fit to enquire, and thereby ignored an important aspect of sentencing, namely the 'principle of totality' which states:

"Where a sentencer is dealing with an offender who has recently been sentenced to imprisonment by another judge for different offences, and decides to impose a further term of imprisonment consecutive to the existing term ; he should have regard to the totalling of all the sentences to which the offender will be subject, and adjust the sentence to be imposed in the light of the aggregate."

The appeal is accordingly allowed and the sentence is reduced to 3 years imprisonment.

Furthermore in an effort to allay any semblance of unfairness to the appellant's co-accused, and in the exercise of this Court's revisionary powers, I reduce the sentence of 5 years imprisonment imposed on the appellant's co-accused KAMELI KARAVAKI by the Magistrate Court, Suva on 1st September 1995, to one of 2 years imprisonment with effect from that date, in recognition of his plea of guilty' and his very different record of previous convictions.

(D.V. Fatiaki)
JUDGE

At Suva,
23rd August, 1996.

HAA0014.96S