Rairaiova v The State [2002] FJHC 89; HAA0003j.2002b (23 September 2002)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 3 OF 2002
(Taveuni Crim. Case Nos. 1, 2, 3, 4 of 2001, 247/00
Savusavu Crim. Case No. 389/01)

Between:

SAKAPO RAIRAIOVA
Appellant

and

STATE
Respondent

Mr. H. Robinson for the Appellant
Mr. J. Rabuku for the State

JUDGMENT

I gave a short judgment in this appeal on 27 August 2002 and stated that I will give my reasons later which I now do.

The appeal is against the totality of sentence passed on the appellant on 21 December 2001 by the learned Resident Magistrate at Labasa, Maika Nakora Esquire.

The grounds of appeal are that:

1. The learned magistrate was wrong in law in making the period of imprisonment to be served consecutively.
   
2. That the learned Magistrate failed to take into account matters relevant before passing consecutive sentences.
   
3. That the sentence was harsh in the circumstances.
   

Charges

The appellant was charged for various offences and sentenced as follows:

(i) (Taveuni Crim. Case No. 247/00): Larceny between 27 October & 3 November 2000, and sentenced to 6 months’ imprisonment to be served consecutively.

(ii) Taveuni Criminal Case Nos. 1, 2 & 3/2001: Larceny between 27 October & 3 November 2001, Larceny in dwelling house 2 December 2000 and Bulk Store Breaking & Entering & Larceny between 2 & 3 December 2000 respectively and sentenced to imprisonment on each for 6 months, 12 months and 12 months respectively to be served consecutively.

(iii) Taveuni Criminal Case No. 4/2001: Larceny (First Count) on 12 November 2000 and Assault Occasioning Actual Bodily Harm (Second Count) on 12 November 2000 and sentenced to imprisonment for three months and six months respectively to be served concurrently.

(iv) Savusavu Criminal Case No. 389/2001: Larceny on 15 December 2001 and sentenced to imprisonment for 9 months to be consecutive with the other offences.

The total sentence to be served consequently amounted to 51 months or 4 years 3 months in prison.

The learned counsel for the appellant has submitted that the sentences should have been made concurrent and that a total sentence of 12 months’ imprisonment would have been more suitable in the circumstances. He said that the ‘one transaction rule’ and the ‘totality principles’ of sentencing should have been applied.

The learned counsel for the State conceded that the total sentence is on the high side, but in Criminal Case No. 3/01 the sentence of 12 months is on the side of leniency. Mr. Rabuku said that while he agrees that the total sentence should be reduced, there ought not to be a drastic reduction. He suggested that the sentences in Criminal Case Nos. 1, 2, 3 & 4 of 2001 could be made concurrent and Savusavu Criminal Case No. 389/2001 could be consecutive i.e. 9 months. This would give a total of 21 months.

I have considered the submissions made by both counsel. The State has conceded the appeals. Applying the totality principle in this case and agreeing with Mr. Rabuku I find that the total sentence of 51 months is longer than what is justified in the circumstances.

I had considered at some length the totality principle in Isireli Romanu and State Suva Criminal Appeal No. HAA0034 of 1996, and for ease of reference I reiterate the principles hereunder.

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 2^nd 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 2^nd 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 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.”

On the principles applicable to concurrent and consecutive sentence, 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 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 whether concurrent sentence should be passed when the offences arise out of the same incident Lord Lane CJ said as follows in Lawrence (1989) 11 Cr. App. R(S) 530:

“[This case] has given us the opportunity to consider this matter afresh, namely the matter 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 determining what sentence is appropriate 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 blood alcohol level, and also 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.”

Applying the principles stated hereabove, the sentences in Taveuni Criminal Case Nos. 1/2001, 2/2001, 3/2001, 4/2001 and 247/00 should be made concurrent to one another which means that the total sentence in these cases will be 12 months AND the sentence of 9 months in Savusavu Criminal Case No. 389/01 is varied to be served consecutive to sentence of the said 12 months in the above 5 Taveuni cases. Thus the total sentence to be served is the said 12 months and 9 months respectively making a total of 21 months effective from 21 December 2001.

The sentences are therefore varied accordingly. The total sentence to be served is 21 months.

The appeal is therefore allowed to the above extent.

D. Pathik
Judge

At Labasa
23 September 2002