Tamanlevu v The State [2001] FJHC 42; Haa0016j.2001s (6 July 2001)

Fiji Islands - Tamanlevu v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEALS NOS: HAA 016 - 027 OF 2001S

BETWEEN:

LIVAI TAMANALEVU

Appellant

AND:

THE STATE

Respondent

Appellant in Person

P. Bulamainaivalu & A.K. Bavou for Respondent

Hearing: 29^th June 2001

Judgment: 6^th July 2001

JUDGMENT

The Appellant has twelve appeals against sentence, which were heard together. On the 20^th of February 2001 he was convicted on six counts of Robbery with Violence, six counts of Unlawful Use of Motor Vehicle, and six counts of Larceny. On the 22^nd of February 2001 he was convicted on six further counts of Robbery with Violence, six further counts of Unlawful Use of Motor Vehicle and six further counts of Larceny. Each incident involved a Robbery with Violence against a taxi-driver, the taking of his vehicle, and theft of the taxi meter. There were twelve separate cases and the offences were all committed over a fortnight from 29^th January to mid February.

A sample of the charges is as follows in Criminal Appeal No. HAA 16 of 2001:

FIRST COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(a) of the Penal Code, Act 17.

Particulars of Offence

LIVAI TAMANALEVU on the 15^th day of February 2001 at Suva in the Central Division, being armed with a penknife robbed SUNIL CHAND s/o Deo Chand of $30.00 cash, the property of the said SUNIL CHAND s/o Deo Chand.

SECOND COUNT

Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to Section 292 of the Penal Code, Act 17.

Particulars of Offence

LIVAI TAMANALEVU on the 15^th day of February 2001 at Suva in the Central Division unlawfully and without colour of right but not so as to be guilty of stealing, took to his own use taxi Reg. No. CU806 the property of SUNIL CHAND s/o Deo Chand.

THIRD COUNT

Statement of Offence

LARCENY: Contrary to Section 259(1) and 262(1) of the Penal Code, Act 17.

Particulars of Offence

LIVAI TAMANALEVU on the 15^th day of February 2001 at Suva in the Central Division, stole a taxi meter valued $600.00 the property of SUNIL CHAND s/o Deo Chand.

The Appellant pleaded guilty to each of these counts before the learned Chief Magistrate who sentenced him on Count 1 (on each file) to 1 year imprisonment, on Count 2, to 2 months imprisonment and on Count 3, to 6 months imprisonment. These terms were concurrent to each other, but consecutive to the similar sentences passed on his other files. The total term passed was 7 years imprisonment. It seems clear from the court records on each of the files, that the learned Chief Magistrate sentenced the Appellant to each term, with a view to imposing a total term which reflected the total offending.

In his appeal against these sentences the Appellant submits that he had assisted the police in their investigations, no injuries were inflicted on the complainants, he was a first offender, he pleaded guilty, all the items had been recovered, and the sentences were harsh and excessive.

State Counsel submitted that terms of 1 years imprisonment was in fact very lenient given the tariff of Robbery with Violence, of four to seven years imprisonment. They submitted that all the mitigating factors had been taken into account by the learned Chief Magistrate, and that the appeals should be dismissed.

These twelve appeals reflect an offending “spree” undertaken by the Appellant to terrorise taxi-drivers, take their taxis from them, and then to steal their taxi meters. The taxi meters which are said to be valued at $600.00 were evidently the purpose of the scheme. In some of the incidents a penknife was used by the Appellant to frighten the taxi-driver. Prior to these convictions the Appellant had only one previous conviction, for Unlawful Use of Motor Vehicle. He helped the police to recover the taxi meters, and he pleaded guilty at the first opportunity. No injuries were inflicted on any of the taxi-drivers.

In all the circumstances, a sentence of 1 years imprisonment for an attack on a taxi-driver, and the theft of his taxi meter after the unlawful seizure of the taxi, is manifestly lenient and wrong in principle. The Court of Appeal and the High Court have said on many occasions that Robbery with Violence is a serious offence, which calls for a deterrent sentence. In Ilaisa Sousou Cava -v- The State, I set the tariff, after considering local and New Zealand precedents, as being between four and seven years. An attack on a defeceless taxi-driver, the use of a pen-knife, the taking of his taxi meter and taxi are all aggravating circumstances, and are circumstances which would not justify a sentence far below the tariff.

In all the circumstances, I would consider a sentence of five years imprisonment to be a far more appropriate sentence for the offence of Robbery with Violence, after considering the Appellants guilty plea, his assistance to the police and his apology to the taxi-drivers. In respect of Count 2, on each of the files, the Unlawful Use of Motor Vehicle, which is a prevalent offence attracts a maximum sentence of six months imprisonment. In the circumstances a sentence of 2 months imprisonment is not wrong in principle. Similarly, a term of 6 months imprisonment for the larceny of a taxi meter, might appear to be lenient, given the value of a taxi meter. However the Appellant helped the police to trace and recover the taxi meters and he should be given considerable credit for that. Furthermore, he told the police who the receiver was, and such information is invaluable in preventing such crimes in the future. The sentences of 6 months imprisonment is therefore not wrong in principle.

The next question is whether the sentences on the three counts on each file should be served concurrently or consecutively.

The principles applicable to imposing consecutive or concurrent sentences of imprisonment are that the decision is discretionary but that separate and distinct offences should attract separate and consecutive sentences. In R -v- Greenberg (1943) KB 381 at p.383, the Court of Criminal Appeal said:

“When a man is found guilty of two misdemeanours, being separate and distinct offences (I apprehend it makes no kind of difference whether it be by two indictments simultaneously tried and found against him, or upon two counts in one and the same indictment), there not only a competent but the proper course was and is to pronounce a second term of imprisonment (assuming it to be within the power of the court as to duration), to commence and begin after the expiration of the first.”

In Krishna and Others-v- Reg [1962] 8 FLR 236, at p.237, MacDuff CJ said:

“The practice is, where a person commits more than one offence at the same time and in the same transaction, save in very exceptional circumstances, to impose concurrent sentences.”

Turning therefore to the cases of the Appellant, Counts 1, 2 and 3 on each file were part of one transaction, and the order to impose concurrent sentences was therefore right in principle.

The next question is whether the total sentence on each file, should be served concurrently or consecutively. An order for consecutive sentences would obviously be far beyond the jurisdiction of the Magistrates Court. Furthermore, the Court’s duty after imposing sentence, is to ensure that the sentence is proportionate to the total offending.

In this case, a sentence of 5 years imprisonment is proportionate to the gravity of the total offending. As such, it would have been proper to order that the total sentences of five years imprisonment on all twelve files be served concurrently.

To this end, the total sentences imposed by the Magistrates Court are quashed, and substituted with a sentence of five years imprisonment on each file, to be served concurrently. The Appellant will therefore serve a total of 5 years imprisonment. The appeal succeeds to this extent.

Nazhat Shameem

JUDGE

At Suva

6^th July 2001

Haa0016J.01S