Banuve v State [2000] FJHC 148; Criminal Appeal 127 & 128 of 1999 (5 January 2000)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 127 & 128 OF 1999
(Suva Magistrate’s Court Crim. Case No. 2017/98 and 1801/98)

Between:

MARIKA BANUVE
Appellant

And

STATE
Respondent

Appellant in person
Mr. Aiyaz Khaiyum for State

The appellant, Marika Banuve, was on 30 July 1999 in the Suva Magistrate’s Court sentenced by Resident Magistrate A. Katonivualiku of the offences of robbery with violence in Criminal case Nos. 2017/98 and 1801/98 respectively to 18 month’s imprisonment consecutive (total of 36 months) and consecutive to the term of imprisonment which he was serving namely, 3 years 6 months.

Therefore the total sentence which he is now serving is 6 years 6 months.

The appellant submits that the present sentence of 3 years for the two offences of robbery with violence (in 2017 and 1801) are harsh and excessive. He is pleading that the Court reduce them or make them concurrent so that if possible he is only required to serve just the period that he is at present serving, namely 3 ½ years.

The learned State counsel concedes that applying the totality principle the consecutive sentences are harsh.

The appellant has 12 separate files for various offences and he was dealt with on all of them on 30 July 1999 (vide details and sentencing remarks of the learned Magistrate in the Court Record) and sentenced, in brief, as follows:

1. In 1768/98, 2769/99, 2404/98, 2405/98, 2406/98, 2407/98, 2408/98, 2409/98, 2510/98 and 2511/98 the sentences were concurrent making a total 12 months concurrent to sentences totalling 3 years 6 months which he is at present serving in file No. 1770/98 and 1188/98 imposed on him on 22 December 1998 and 28 December 1998 respectively but the said concurrent sentence of 12 months is not back-dated.
   
2. In 1801/98, 18 months’ imprisonment consecutive to present term as in (a) above.
   

100. In 2017/98, 18 months’ imprisonment consecutive to 1801/98 (as in (b), and consecutive to present term - as in (a) above.
     

It is to be noted that the appellant’s appeal in 1770/98 was dismissed. Offences in 1801 and 2017 were committed in June 1998 and May 1998 respectively and in all the other files referred to in (a) above they were committed in September 1998.

I agree that bearing in mind the totality principle there ought to be an adjustment to the sentences passed on the appellant. In considering the matter I also take into account the fact that in robbery with violence (1801/98) the appellant was charged with another and he is (the latter) the one who used violence but the appellant admits that there was threat on his part. In 2017/98 the charge was robbery devoid of any violence. In neither of the two cases there were any injuries on the respective victims.

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 sentence 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 (supra) 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 emblezzlement, or fraudulent false accounting, from the same firm over a period of time". (underlining mine for emphasis).

In this case the appellant is already subject to an existing sentence of 3 ½ years passed on him in December 1998 and now he is ordered to serve new sentences of 18 months each, totalling three years, to run consecutively to the existing sentence. In these circumstances the Court has to consider the propriety of the aggregate sentence taken as a whole. As was held in ANDREW JONES [1996] 1 Cr.App.R. (S.)153:

"However, as was said in Millen (1980) 2 Cr.App.R.(S.) 357, it was necessary for a court faced with this situation to have regard to the totality of the present sentence and sentences already being served. There was nothing wrong with ordering the new sentence to run consecutively to the earlier sentence, but when that was done, regard should be had to the total length of the sentence which would result. The total sentence of 22 years was excessive and would have a crushing effect on the appellant. The total sentence on the appellant should be 17 years, the present sentence would be reduced to six years’ imprisonment consecutive to the original sentence of 11 years."

Making the best judgment that I can, I have concluded that the total sentence on the appellant, taking both the existing sentence and the latest ones together, ought to be 5 years. That requires the sentences on this appeal to be varied. The sentence of 18 months consecutive in 1801/98 and 2017/98 are quashed and substituted with 18 months’ imprisonment on each file to run concurrently on each offence. I also set aside the concurrent sentences in 1768/98, 2769/99, 2404 to 2409/98, 2510/98 and 2511/98, which were to be concurrent to 1770 and 1188, and now substitute them with similar sentences ordered to be served concurrent to sentence in 2017/98.

The total sentence therefore to be served is 5 years’ imprisonment.

To that degree this appeal succeeds.

D. Pathik
Judge

At Suva
5 January 2000