Visawaqa v The State [2003] FJHC 138; HAA0021J.2003B (23 September 2003)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 21, 22, 23, 24, 25, 26, 27, 28, 48 and 49 of 2003
(Labasa Magistrate’s Court Criminal Case Nos. 271/00, 184/01, 281/01,
283/01, 285/01, 286/01, 237/00, 196/00, 231/00 & 124/00)

Between:

TUKOLI VISAWAQA
Appellant

and

THE STATE
Respondent

Appellant in Person
Mr. S. Vasarogo for the State

JUDGMENT

The appellant Tukoli Visawaqa appeared before the Labasa Magistrate’s Court and was convicted and sentenced on his own plea and after trial in some cases for various offences.

I shall deal with all the appeals together. Particulars relating to each appeal and the sentences passed are stated hereafter.

The appeals are against the totality of sentence passed by the learned Resident Magistrate, Maika Nakora Esquire.

In summary, the grounds of appeal are: that the sentences are harsh and excessive and that plea of guilty was not taken into account in most of the cases in passing sentence. In addition in Criminal Appeal Nos. 48 and 49 items stolen were recovered and the additional sentence of 24 months on top of the 5 years that the appellant is serving is harsh and excessive.

The appellant himself conducted his appeals very well and submitted to the effect that some of the sentences should have been concurrent and that the total sentence imposed on him is harsh and excessive. He therefore asked for reduction of sentences and an overall reduction.

The learned counsel for the State submitted that the learned Magistrate may not have considered the ‘totality principle’ in sentencing.

Consideration of the appeals

To give a clear picture of the situation in regard to the sentences passed, I give below a summary of the cases which are the subject of appeal:

(a) Criminal Appeal No. 21/02

(Original case No. 271/00)

Harbouring prisoner – offence committed on 27.4.00 – sentenced on 23.5.01 for 12 months (after trial)

(b) Criminal Appeal No. 22/02

(Original Case No. 184/01)

Common Assault – offence committed on 26.1.01 – sentenced on 23.5.01 for 3 months consecutive to sentence in Appeal No. 21 (271/00)

(c) Criminal Appeal No. 23/02

(Original Case No. 281/01)

House-breaking entering and larceny – offence committed on 26.3.01 – sentenced on 14.6.01 for 9 months consecutive to sentences in Appeal Nos. 24, 25, 26, 27 and 28 (total of 48 months)

(d) Criminal Appeal No. 24/02

(Original Case No. 283/01)

House-breaking with intent to commit felony – offence committed on 17.4.01 – sentenced on 14.6.01 for 9 months.

(e) Criminal Appeal No. 25/02

(Original Case No. 285/01)

Burglary – offence committed on 26.3.01 – sentenced on 14.6.01 for 9 months.

(f) Criminal Appeal No. 26/02

(Original Case No. 286/01)

Throwing object – offence committed on 17.4.01 – sentenced on 14.6.01 for 9 months.

(g) Criminal Appeal No. 27/02

(Original Case No. 237/00)

Escaping from lawful custody – offence committed on 27.3.00 – sentenced on 14.6.01 for 6 months.

(h) Criminal Appeal No. 28/02

(Original Case No. 196/00)

Disobedience of lawful orders – offence committed on 22.3.00 – sentenced on 14.6.01 for 6 months.

(i) Criminal Appeal No. 48/03

Larceny in dwelling-house – offence committed on 11.2.00 – sentenced on 29.5.02 for 12 months consecutive to sentence in 124/00 but sentences in 282/01 and 284/01 were concurrent to 124/00

(j) Criminal Appeal No. 49/03

(Original Case No. 124/00)

Restaurant breaking, entering and larceny, Office breaking, entering and larceny and Throwing Object – offence committed on 27.2.00 – sentenced on 29.5.02. for 12 months, 12 months and 6 months respectively concurrent.

In these appeals I find that the total sentence of 5 years and 3 months in Appeal Nos. 21 to 28 and additional 2 years in Appeal Nos. 48 and 49 making a total of 7 years 3 months has produced an overall sentence which is longer than what was justified in the circumstances.

On the sentences passed on 23.5.01 in Appeal Nos. 21 and 22 the appellant was to serve 15 months (1 year 3 months). Then on the same date in Appeal Nos. 23 to 28 he was to serve 48 months (4 years) (made up of 9m + 9m + 9m + 9m + 6m + 6m respectively). A total of 5 years 3 months (63 months) was imposed. Then on 29.5.02 in appeal Nos. 48 and 49 he was given 12 months on each. The sentence of 12 months in 48 was to be consecutive to 49 making a total of 2 years in these two appeals. It is not clear why it was consecutive when sentences in 282/01 and 284/01 were concurrent to 124/00.

Therefore the total sentence passed on the appellant was the said 5 years 3 months plus the said 2 years totalling 7 years 3 months.

On sentences passed on 14.6.01, offences in Appeal Nos. 23 and 25 were committed on 26.3.01 and in Appeal Nos. 27 and 28 on 27th and 22nd March, 2000 respectively. Also sentences of 9 months were for offences committed on 17.4.01 in Appeal Nos. 24 and 26. They were all consecutive sentences.

In sentencing in this case the principles governing “one transaction rule” and the ‘totality principle’ come into play. I have dealt with these principles fairly fully in Isireli Romanu v State (Suva Criminal Appeal No. 34/96) and for ease of reference I repeat the principles here and apply them to these appeals.

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 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) 580:

“[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 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.” (emphasis mine)

Conclusion

Applying the above principles to the facts and circumstances of this case and the observations and remarks that I have made on the sentences passed, I am of the view that principles, pertaining to the giving of concurrent sentences have been overlooked so also the totality principle in sentencing.

Hence in all the circumstances, I hold that the total sentence of the said 7 years 3 months was too long, and sufficiently long that this Court should interfere. It was unduly harsh and excessive.

For these reasons I vary the sentences in the following appeals as follows:-

(i) the sentences in Appeal Nos. 23, 25, 27 are made concurrent to one another and not consecutive which means that the total sentence in these appeals will be 9 months. These were series of offences within a few days.

(ii) the sentences in appeal Nos. 24 and 26 are made concurrent to one another and not consecutive which means that the total sentence in these appeals is 9 months. In both appeals the offences were committed on the same day.

(iii) The sentence of 12 months, in Appeal No. 48/03 is varied to run concurrently and not consecutive with sentence in 49/03 as sentences in 282/01 and 284/01 were concurrent to 49/03 and there is no reason why 48/03 be made consecutive. This means that a total of 12 months is to be served.

In the result the sentences as varied will be as follows:

(a) Appeal Nos. 23, 25, 27 total of 9 months
(b) Appeal Nos. 24 and 26 total of 9 months
(c) Appeal Nos. 48 and 49 total of 12 months
(d) Sentence in 21 is intact i.e. 12 months
(e) Sentence in 22 is intact i.e. 3 months
(f) Sentence in 28 is intact i.e. 6 months

The total sentence to be served therefore is 4 years 3 months.

The appeals are therefore allowed to the above extent.

D. Pathik
Judge

At Labasa
23 September 2003