Kanaenabogi v State [2002] FJHC 169; HAA0072J.2002L (30 August 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NOS: HAA 072-077 OF 2002L

Between:

VILIAME KANAENABOGI
Appellant

And:

THE STATE
Respondent

Hearing: 21st August 2002
Judgment: 30th August 2002

Counsel: Appellant in Person
Mr. B. Solanki for State

JUDGMENT

On 23rd August 1999, on his pleas of guilty, the Appellant was sentenced, in the Lautoka Magistrates Court to a total of 9 years imprisonment for 15 different offences on 6 court files. The sentences were to be served consecutively to his existing term of imprisonment. According to the papers on the court file, the Appellant appealed against sentence within 28 days but in his transfer from Natabua Prison to Suva Prison, his petition was misplaced. Therefore, although his appeal is very much out of time, I granted leave to appeal out of time.

The Appellant appeals against the cumulative effect of all his sentences. In 1999, he was sentenced to 32 months imprisonment (2 years and 8 months) for a series of offences including robbery with violence. While in custody, he escaped and committed a number of offences. He was charged with four counts of robbery with violence, five counts of unlawful use of motor vehicle, one count of larceny, two counts of driving a motor vehicle without a licence, two counts of driving a motor vehicle without third party insurance and one count of escaping from lawful custody. The facts on each court file are similar. On the 4th, 5th, and 7th of August, and between the 5th and 12th of July 1999, the Appellant with at least two others became involved in a crime spree. On court file 643/99, for instance, he and another person, hired a taxi. They stopped the taxi in a secluded area and robbed the driver of his gold chain, wrist watch and $65.00 cash. They pulled the driver out of the car and drove his vehicle away. They abandoned it in another part of town. On court file 645/99, the complainant (a carrier driver) received lacerations to his mouth and bruises to his body. On court file 646/99 the Appellant used a cane knife and screw driver to threaten the driver. The Appellant agreed with the facts. Sentences were as follows:

Cr. File No. 643/99
Robbery	21 months
Unlawful use of motor vehicle	1 month
Driving motor vehicle without licence	1 month
Driving motor vehicle without 3rd party	4 months
Total	27 months

Cr. File No. 644/99
Robbery with violence	21 months
Unlawful use of motor vehicle	1 month
Larceny	5 months
Total	27 months

Cr. File No. 645/99
Robbery with Violence	21 months
Unlawful use of motor vehicle	1 month
Driving motor vehicle without licence	1 month
Driving motor vehicle without 3rd party	4 months
Total	27 months

Cr. File No. 646/99
Robbery with Violence	21 months
Unlawful use of motor vehicle	1 month
Total	22 months

Cr. File No. 647/99
Escaping from Lawful Custody	4 months
Cr. File No. 648/99
Unlawful use of motor vehicle	1 month
TOTAL	108 months

The total sentence was 9 years imprisonment. He was disqualified from driving for 5 years. The sentence is consecutive to the existing term, so the total term he is serving is 11 years and 8 months. State counsel concedes that the total term is excessive. He further concedes that the consecutive terms of imprisonment on each court file appear to be wrong in principle because they are in relation to one criminal transaction.

I agree. Although a term of 27 months imprisonment appears lenient for an offence of robbery with violence (for which the tariff is between four to seven years) the sentences should have been concurrent and not consecutive on each file. Further the total term is excessive, and does not reflect the nature of offending. Although robbery with violence is always serious, weapons were used in only one of the incidents, and the value of the property stolen was not high. Further, it is important to achieve proportionality in respect of other similar cases. The sentences are therefore quashed and substituted with the following sentences:

643/99
Robbery with Violence	5 years
Unlawful Use of motor vehicle	1 month
Driving motor vehicle without licence	1 month
Driving motor vehicle without 3rd party	1 month
644/99
Robbery with violence	5 years
Unlawful use of motor vehicle	1 month
Larceny	6 months
645/99
Robbery with Violence	5 years
Unlawful use of motor vehicle	1 month
Driving motor vehicle without licence	1 month
Driving motor vehicle without 3rd party	1 month
646/99
Robbery with Violence	5 years
Unlawful use of motor vehicle	1 month
647/99
Escaping from Lawful Custody	6 months
648/99
Unlawful use of motor vehicle	1 month

All sentences are to be served concurrently with each other and concurrent to the existing term of imprisonment. The total term of imprisonment is five years imprisonment.

Nazhat Shameem
JUDGE

At Suva
30th August 2002