Labalaba v The State [2005] FJHC 262; HAA0074J.2005S (2 September 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0074 of 2005S

Between:

EPELI LABALABA
Appellant

And:

THE STATE
Respondent

Hearing: 26th August 2005
Judgment: 2nd September 2005

Counsel: Appellant in Person
Ms V. Lidise for State

JUDGMENT

The Appellant was serving a total of 8 years imprisonment for robbery with violence. He was charged on one count of burglary, and one count of larceny in dwelling house. For these offences, he was sentenced on the 11th of May 2005, to a further consecutive term of 18 months imprisonment on each count, to be served concurrently with each other. He appeals against the order that the sentences be served consecutively.

The grounds of appeal are that the totality of the sentence does not reflect the nature of the offending, that inadequate weight was put on his mitigation, that no personal violence was used during the commission of the offence, and that inadequate weight was put on his plea of guilty.

The facts of the case were that on the 6th of September 2002, he and another went to a villa at the Pacific Harbour, forced open one of the windows and entered it. No one was at home at the time. The next day the owner discovered that a safe and its contents, of $4,500 cash, was missing. The matter was reported to the police. The Appellant was arrested, and interviewed. He admitted the offence. No money was recovered.

These facts were admitted by the Appellant, who also admitted 14 previous convictions. In mitigation, he said he was 30 years old, and was a single man who farmed for his livelihood. He expressed remorse, saying he had used all the money on his farm.

The learned Magistrate said that he might have considered a concurrent term of imprisonment, had the safe and the money been recovered. He noted that the Appellant’s co-accused had received concurrent terms of 18 months imprisonment on the 13th of January 2003 and said that the Appellant should receive the same sentence in the interests of uniformity. He then imposed a total of 18 months imprisonment to run consecutive to the 8 year term the Appellant was then serving.

The State opposes this appeal saying that the 18 month terms imposed are within the tariff for housebreaking offences, and that the Appellant did not change his plea until April 2005, three years after the charges were laid. Counsel said that because the housebreaking offences were not connected to the robbery with violence offence for which the Appellant was serving 8 years imprisonment, the consecutive sentences were correct in principle.

The Appellant made both oral and written submissions, referring to other offenders who were given concurrent terms for shop-breaking and robbery with violence. He clearly has no complaint with the length of the individual sentences, only with the order that they run consecutive to his present term.

It is not clear from the record, when the 8 year term was imposed, and how much longer he still has to serve. However on the 1st of March 2005, he told the court that he was serving a 2 year term imposed on him in December 2004. On the 27th of April 2005, he told the court that he would be released in 2010. It appears therefore, that his 8 year term for robbery with violence was imposed between December, 2004 and April 2005. In effect therefore, when he was imposed the 18 month term in May, his 8 year term was lengthened to 9½ years.

In principle, the consecutive terms were justified because the offences on this file have no connection to the robbery. The only reason why the terms could be served concurrent to each other, would be if the total term of 9½ years imprisonment, does not reflect the totality of the offending. The offending in this case was very serious, because of the large sum of money taken. It was never recovered. The Appellant said that he used it on his farm. Although no violence was involved in the offending, this was a serious case of larceny and housebreaking, which warranted a longer total term then the 18 months imposed. He was entitled to no leniency because he has numerous, similar previous convictions, and because he pleaded guilty long after the event. The 18 month term was a lenient sentence in the circumstances of the case. An order that it be served together with the 8 year term already imposed would have been even more lenient. In the circumstances, I am not persuaded that the learned Magistrate erred in ordering consecutive terms. This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
2nd September 2005