Qalijona v The State [2004] FJHC 140; HAA0065.2004 (20 August 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA0065 OF 2004

BETWEEN:

PENIASI QALIJONA
Appellant

AND:

STATE
Respondent

Counsel: Appellant – In Person
Mr. P. Bulamainaivalu – for State

Date of Hearing: 11th August, 2004
Date of Decision: 20th August, 2004

APPEAL DECISION

Introduction

The appellant was charged with two counts of robbery with violence and convicted by the Suva Magistrates Court. He was sentenced on the 15th of October, 2003 to 4 years imprisonment in respect of each robbery. Those terms to be served consecutively. A total of 8 years imprisonment. He appeals against the sentence.

Background

The accused and others went to the Supreme Fuel Limited Service Station on the 9th of October, 2003 armed with a pistol. Whilst this appellant kept look out the Manager was threatened and the station robbed of cash and cheques to the value of $4,164.60.

In the course of the robbery the robbers also threatened two employees of the service station with violence and demanded cash from them. They took $400.00.

After investigation and enquiry the appellant admitted the offence. Cheques worth $403.66 were recovered. The complainants received no injuries.

The Appeal

At his appearance before me the appellant was reminded of his constitutional rights to be represented by a lawyer. He was also advised of his ability to make an application for legal aid. He appeared unrepresented at the hearing but elected to proceed with it based on comprehensive written submissions he had filed in Court.

The petition of appeal includes grounds that the guilty plea was equivocal; that the appellant was unrepresented by counsel and the court should have conducted a disputed facts hearing. These grounds were abandoned at hearing in preference for a concentrated submission that the sentence was harsh, excessive and wrong in principle.

In written submissions supplied in advance of the appeal hearing the appellant supports his sentencing appeal with the following matters:

1. A lack of parity with co-accused that have a long string of previous convictions.
   
2. A claim that he was a minor offender when compared with the other accused.
   
3. A lack of respect for the totality principle and in effect an argument the sentences should have been served concurrently not consecutively.
   
4. A lack of respect for an early guilty plea.
   
5. A re-emphasized mitigation that this is the first imprisonable offence the appellant has faced.
   
6. That he is otherwise of previous good behaviour.
   
7. That he is needed by his family to support them.
   
8. That he has seen the error of his ways and wishes to get out of jail as soon as possible.
   
9. That the sentence lacked comparative relevance to other sentences for similar crimes.
   

At appeal the appellant added a further ground in mitigation. He said that after his sentencing he was approached by the State and asked to give evidence against his co-accused. He says that the people that approached him said that if he signed a statement against his co-accused and gave evidence in Court in accordance with that statement that his overall prison term would be reduced to one of 5 years in jail. He says he agreed to this proposition.

He further states that he was taken to Court. He initially thought for the purposes of his appeal and to honour the bargain he thought he had struck concerning the reduction of his overall sentence. However, when he got to Court he found that it was in fact the criminal trial against his co-accused, that was on; not his appeal. He says that he was in that process handcuffed and left alone with the co-accused in the same cell and was beaten up and threatened by them. He says despite the attitude of his co-accused he gave evidence anyway and he assisted the State in securing a conviction. He says since that time his co-accused have been remanded to the same prison as he and that he is in continual fear because of their threats against him.

For the State Mr. Bulamainaivalu, although he did not have carriage of the prosecution against the co-accused, was able to confirm that this appellant did indeed consent after sentence to assist the State in securing a conviction against the co-accused. Counsel confirms that that evidence was given and it did in fact result in a conviction.

Regrettably, counsel was unable to assist me further with any comment upon any inducement made to the appellant. However, for very good policy reasons even if that were so it would not influence me on the sentencing appeal. In fact I would go so far as to say that it would be irresponsible for any representative of the State to hold out such inducement to a potential witness.

Counsel had otherwise prepared written submissions and rested on those submissions. Counsel sought to emphasize that the sentencing Judge was quite able to impose separate and consecutive penalties for this offending as each individual act of robbery was distinct. He says that overall the totality principle was respected. It was submitted that a sentence of 8 years imprisonment for an armed robbery of a service station is not harsh and excessive.

Decision

In the State v Cava, Criminal Case HAC0007 of 2000 my sister Justice Shameem offered valuable comment on guidelines for sentencing in robbery with violence cases. At page 8 of her decision the learned Justice says:

“Sentences for robberies involving firearms should range from six to eight years. A lower range of four to seven years is appropriate where firearms are not used and the premises robbed are banks, or shops, post offices or service stations. However, the sentence may be higher where the victim or victims are particularly vulnerable due to age, infirmity, disability or where children are involved. Similarly where injuries are caused in the course of the robbery, a higher sentence will be justified. The value of the property stolen, evidence of planning or premeditation, multiple offences and previous convictions for similar offences, should be considered aggravating features.”

In his sentencing decision the learned Magistrate found a starting point and calculated his sentence after some reduction for a guilty plea, a clean recent record and the accused’s age.

However, there is no direct record that the learned Magistrate properly considered the totality principle or the one transaction rule when determining whether the sentences on the two counts should be served concurrently or consecutively.

As for the totality principle a court which passes a number of consecutive sentences needs to review the aggregate term and consider whether it is just and appropriate considering the culpability for the offences as a whole. A court must be careful to impose condign punishment for the major offending particularly in circumstances where the offending, while separate, is nonetheless closely interlinked.

As a general principle consecutive terms should not be imposed for offences which arise out of the same incident, whether or not they arise out of precisely the same facts. However, this discretion is widely interpreted (CF R v Laurence, 11 Cr. App. R.580).

The summary of facts indicates that this was a commercial robbery of a service station and that the accompanying theft of $400.00 from the employees was an opportunistic after thought.

As such, in my view, the condign punishment should have been reserved for the commercial aspects of the robbery of a service station.

When viewed in this way a sentence of 4 years imprisonment for the commercial robbery was not a sufficient penalty.

I would have calculated a starting point of 5 years added to that the aggravating features including:

• The appellant had 5 previous convictions.
• The prevalence of this type of offending.
• The pre-meditation and planning of the offending.
• This was a robbery conducted with a threat of arms. (The pistol may have been fake).
  

For those aggravating features 4 years needs to be added to this starting point making a total of 9 years imprisonment.

As against that the mitigating features of the appellant’s co-operation with the police and early guilty plea are significant. In addition he deserves some credit for maintaining a reasonably clear record in the 6 years before this offending. His youth and family responsibilities also need to be taken into account.

I would have deducted 3 years to recognize those features. This would make an effective sentence of 6 years imprisonment. This is in respect of Count 1. In respect of Count 2, I agree with the construction of the sentence imposed in the Court at first instance and would have left that at 4 years.

However, for the reasons expressed earlier in this judgment I do not accept that these transactions were so distinct as to warrant a consecutive term. In my view, the theft from the employees was a by product of the petrol station robbery and accordingly does not deserve a consecutive penalty. Condign punishment must follow the major offence.

Conclusion

The appeal is granted. The sentence in the court below is quashed and substituted with one of 6 years in respect of Count 1 and 4 years in respect of Count 2. These terms to be served concurrently. An effective term of 6 years imprisonment.

Gerard Winter
JUDGE

At Suva
20th August, 2004