Kunamomo v The State [1999] FJHC 106; Haa0045j.99b (9 September 1999)

Fiji Islands - Kunamomo v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 45, 70 & 71 OF 1999

:

KEMUELI KUNAMOMO
Appellant

AND:

STATE
espondent

Appellant in person
Mr. Rabuku for the State

JUDR>JUDGMENT

The appellant was sentenced as hereunder on three separate files for three separate offences as follows:

(a) Criminal Appeal No. 45/99
(Original Case No. 946/98)

Office breaking entering and larceny with two others - offence committed on 28 October 1998 - sentenced by S.M. Shah Esq., Resident Magistrate, Labasa on 26 January 1999 to 12 months' imprisonment suspended for 18 months.

(b) Criminal Appeal No. 70/99
(Original Cr. Case No. 392/99)

Robbery with violence with another - offence committed on 30 May 1999 - sentenced by Maika Nakora Esq., Resident Magistrate, Labasa on 9 June 1999 to two year's imprisonment.

(c) Criminal Appeal No. 71/99
(Original Cr. Case No. 393/99)

Housebreaking, entering and Larceny - offence committed on 30 May 1999 - sentenced by Maika Nakora Esq., Resident Magistrate, Labasa on 8 June 1999 to 12 months' imprisonment consecutive to sentence in Criminal Case No. 392/99.

Further, the suspended sentence of 12 months' imprisonment imposed on 26.1.99 Criminal Case No. 946/98 was activated consecutive to sentence in Criminal Case No. 392/99.

I shall deal with the three appeals together.

The appeals are against severity of sentence. As can be seen the appellant was sentenced to imprisonment for a total of 4 years made up of 2 years in Crim. App. 70/99, 1 year in Crim. App. 71/99 and 1 year in Crim. App. 45/99 on activation of suspended sentence.

At the hearing the appellant was allowed to read out from a prepared statement. He says that the sentences are harsh and excessive and is seeking leniency by being given a suspended sentence. He admits that the he has twenty previous convictions and has spent a lot of his time in prison and is repentant. The appellant is 28 years old and is married with 2 children.

The learned State Counsel opposes the appeal and stated that the appellant could not have been given a concurrent sentence in Crim. App. Nos. 70 and 71 as there were 'two different victims' and offences were committed on 'different occasions' and that the learned Magistrate was aware of this at the time of sentencing.

I have considered the appeals in the light of the submissions made by both the appellant and the State.

I do not find anything wrong in the activation of the suspended sentence of 12 months as the appellant had committed another offence within the operational period.

Even the sentences of 2 years and 12 months for robbery with violence and housebreaking entering and larceny respectively are within the range of sentences normally passed for such offences.

The overall sentence of 3 years and the additional sentence of 12 months on activation are not longer than what was justified in the circumstances. The appellant was not entitled to concurrent sentence. In Cr. App. 71/99 he was sentenced on 8.6.99 and in Crim. App. 70/99 on 9.6.99. Although the offences occurred on the same day, namely, 30.5.99 they were completely unrelated and separate and committed at different times of the day. Although the appellant has many previous convictions, he is not being punished for that except that he forfeits the leniency which is normally granted to a first offender. The sentence of two years for robbery with violence is not severe at all bearing in mind the seriousness of the offence and the circumstances in which it was committed.

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 in his PRINCIPLES OF SENTENCING 2nd Ed at p.56 as follows:

"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 offences 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."

On the principles applicable to concurrent and consecutive sentences, whilst agreeing that this is always in the discretion of the trial Court, MacDUFF CJ in KRISHNA & OTHERS v REGINAM 8 FLR 236 at 238 said:

"Turning next to concurrent sentences, the practice is, where a person commits more than one offence at the same time and 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)

The offence of robbery with violence is a very serious offence. The manner in which the appellant with another robbed the taxi driver led the learned magistrate to comment at the time of passing sentence that:

"I've said time and again that Robbery with Violence is a prevalent offence around Fiji lately. The complainant who is a taxi driver in this case was going about his lawful business in providing much needed transportation at that time of the night and his life was at risk".

In a situation such as this the sentence passed must reflect a balance between the competing interests of the victims, of the wider public and of the offenders themselves. People like the taxi driver deserve the Court's protection and the Courts see that those who unlawfully take advantage of them are being adequately punished for assaults on them.

The learned Magistrate was entitled to take account of the prevalence of the offence in the area in which he sits, and to seek to send a message to other's minded to indulge in this kind of behaviour, as to the court's determination to punish them severely for it.

I find that the sentences were not manifestly excessive and were correct in principle. The appellant was neither entitled to concurrent sentence nor suspended sentence in the case of appellant who has a string of previous convictions bearing in mind the gravity of the offending and the Court's strong views about them.

The appeal is dismissed.

D. Pathik
JUDGE

At Labasa
9 September 1999

Haa0045j.99b