STATE
Respondent
The Appellant in person
Mr. K. Wilkinson for tate
JUDGMENT
This is an appeal against the aggregate sentence of 5 years' imprist passed on the appellant bant by Resident Magistrate, Suva (S.M.
Shah Esq.) on 31 May 1995.
The appellant was with others (on some co charged on six counts for offences committed on 17 Septembptember 1994 when he pleaded guilty
to all except Count 5 (Robbery with violence). The counts were: Count 1: robbery with violence, Count 2: unlawful use of motor vehicle,
Count 3: driving motor vehicle without a driving licence, Count 4: driving motor vehicle in contravention of the condition of third
party policy and Counts 5 & 6: robbery with violence.
He was sentenced on Counts 1 and 6 to 3 years' and 2 years' imprisonment respectively with the twrs being consecutive to Couo Count
I making a total of 5 years. The sentences in the other counts were concurrent.
The appellant says the total sentence is harsh and excessive.
The learned deputy Director of Public Prosecutions opposes the appeal. He says that thistrate had considered all all that was to
be taken into account before passing sentence, that the sentence was appropriate and that it is not a sentencing error to make the
sentence consecutive.
Before this hearing commenced the appellant did mention that he ipresent serving a total of 7 1/2 years made up of the 5 yea5 years'
imprisonment in this case and 2 1/2 years in Crim. Case No. 3478/94 for the offences of robbery with violence (2 years) and unlawful
use of motor vehicle and driving motor vehicle without a driving licence (3 months each). These latter offences were committed on
23 September 1994, that is, a week after the said earlier offences.
Although the appellant said that he has lodged a Petition of Appeal against sentence in the said Crim. Case No. 3478/94 there is nothing
in the said file (which I have perused) to indicate that; hence there is nothing that I can do about the proposed appeal at this
hearing. I shall therefore just deal with the Appeal before me.
The appellant is a former school teacher aged 24 yehe resigned from teaching after falling into bad company whny which gave rise to
the present offences. He has a strong family background with highly educated parents and a brother.
The appellant has made a very strong submission and I find that there are merits .
No doubt he has committed a series of serious offences of a similar nature. I agree with the learned Magistrate that custodial sentence
is warranted in the circumstances of this case although the appellant has no previous convictions.
The main issue is whether onsecutive sentence of two years on count 6 was appropriate or should it have been concurrecurrent to the
sentence in Count I.
In this I find that the sentence of five years passed has produced an overall sentence which was lwas longer than what was justified
in the circumstances.
The power to order sentences to run consecutively is subject to two major limiting principles, which may be called the "one transaction rule" and the "totality principle" (THOMAS: PRINCIPLES OF SENTENCING 2nd Ed. p.53). It does not mean that consecutive sentences cannot be imposed, so long as the overall sentence is not unduly harsh
and by the same token the outcome of the concurrent sentences are not rendered unduly lenient in view of aggravating features (REGINA v JOHNSON (THOMAS), The Times 22.5.95).
The totality principle has been expressed by THOMAS inPRINCIPLES OF SENTENCING 2nd Ed at p.56 as follows:
"The effect of the totality principle require a sentencer who haho 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 sentence, to review the aggregate sentence and consider whether the aggregate is just and appropriate."
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> On the principles applicable to concurrentconsecutive sentence, whilst agreeing that this is always iays in the discretion of the
trial Court, MacDUFF CJ in KRISHNA & OTHERS v REGINAM 8 FLR 236 at 238 said:
ass=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> "Turning next to concurrent sentences, the pra is, where a person commitsmmits more than one offence at the same time and in
the same transaction, save in very exceptional circumstances, to impose concurrent sentences. Sawedi Mukasa v. R. 13 E.A.C. A. 97 applied this principle to two counts one of burglary and the other of theft. This practice had been extended to cases where although
the offences have not been committed at the same time, they have been of the same type and have, in effect, formed part of one transaction.
An example of this type of offence would be several counts of embezzlement, or fraudulent false accounting, from the same firm over
a period of time." (underlining mine for emphasis)
Also, in considering whetherurrent sentence should be passed when the offences arise out of the same incident LORD LORD LANE CJ said as follows in LAWRENCE (1989) 11 Cr. App. R(S) 580:
"[This case] has given us the opportunity to consider this r afresh, namely the matteratter whether concurrent sentences have
to be passed as a matter of practice when the offences arise out of the same incident.
It seems to this Court the problem is really one of determiwhat sentence is appropriatpriate to the offences taken as a whole, that
is to say the whole of the criminal activity of the defendant on that particular occasion. Driving whilst disqualified, one would
have thought, is obviously not so serious as driving whilst disqualified and with an excess of alcohol in the blood stream. The latter
plainly deserves greater punishment if justice is going to be done. Whether that is done by imposing shorter sentences to run consecutively
or longer sentences to run concurrently, does not really in the end make any difference. In some cases long, or even the maximum
sentence for each offence to run consecutively will plainly be justified.
For instance a man who drives with a high bllcohol level, and also with with great recklessness may well deserve the maximum sentence
on each count to run consecutively. Whether any discount, and if so what discount, should be given for pleas of guilty is another
question not connected with the question with which we are concerned, and of course, it need hardly be said, will depend on the particular
circumstances of each individual case."
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> It is to be noted, however, that as stated in R v JORDAN [1997] EWCA Crim 3421; (1996) 1 Cr. App. R(S) 181, that although in general it was wrong to pass consecutive sentences for offences arising from the same incident, the Court had recognised
in R v WHEATLEY, 5 Cr. App. R(S) 417, that cases of persistent offending warranted a different approach; but the case before me is not one of "persistent offending". The court has to have regard to the totality of sentence and also to the total length of sentence which will result.
Applying the above principles to the facts and circumstances of this case, as observedhe Court in a case of robberobbery in THOMAS (1994) 15 Cr. App. R. (S) 848, the sentence of 2 years consecutive passed in this case in the wake of a plea of guilty to the Offences, stands too high in the
range of sentences for such offences. I see nothing wrong in the three year sentence on the first count, but only when the sentence
of 2 years in Count 6 is made consecutive that it offends against the "totality principle". The learned Magistrate did not say at the time of sentencing why the sentence in Count 6 is less than in Count 1 although the offences
are of a similar nature and committed the same day with one offence following the other.
In all the circumstances, I am satisfied that the total sentence of 5 years passed on counts 1 ands too long, and sufficientliently
long that this Court should interfere. It was unduly harsh and excessive.
I therefore quash those sees in Counts 1 and 6 and substitute in their place, on each of the said two counts, a sentesentence of three
years' imprisonment with the sentence in Count 6 being concurrent with Count 1 and all other sentences to be concurrent one with
another and with Count I. In the result the overall sentence is reduced from 5 years to 3 years.
To that extent this appeal succeeds.
D. Pathik
Judge
At Suva
2 August 1996
Haa0034j.96s
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