Tamoi v The State [2005] FJHC 84; HAA0112.2004 (28 February 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA0112 OF 2004

BETWEEN:

MANASA TAMOI
Appellant

AND:

STATE
Respondent

Counsel: Mr. A. Vakaloloma – for the Appellant
Mr. P. Bulamainaivalu – for the Respondent

Date of Hearing & Judgment: 28th February, 2005

JUDGMENT ON APPEAL

Background:

On the 2nd of April 2004 the appellant was convicted and sentenced to 9 months imprisonment for one count of housebreaking, entry and larceny. That sentence was accumulated on an existing sentence of 3 years imprisonment that the prisoner was currently serving.

At the appeal hearing it was common between the appellant and State Respondent that a mistake had been made in the learned Magistrate’s sentencing.

The subject sentence was for offending that occurred at almost the same time as the offences leading to the sentence of 3 years imprisonment passed in cf 1540/03. It was conceded by the State that due to a procedural error the last remaining charge had not been dealt with when sentence was passed in that earlier matter.

It was further and responsibly conceded by Senior Prosecuting Counsel that if the subject charged had been before the Court at the time sentence was passed in cf. 1540/03 there would have been no appreciable increase in penalty.

In other words if the subject appeal charge had been before the learned Magistrate when he sentenced on cf 1540/03 the total sentence would have remained 3 years.

It was further conceded by learned counsel for the State that the accumulation of the additional 9 months on the original 3 year sentence imposed offended the totality principle.

Conclusion:

I agree with the concessions made by learned counsel for the State and of course I agree with the submissions made by counsel for the appellant.

It is clear that due to an administrative oversight the learned Magistrate fell into error when imposing this cumulative sentence. At that time the learned Magistrate failed to take into account that the offending was all part of the same bracket of offending upon which the appellant had been earlier sentenced.

For these reasons the sentence of 9 months imprisonment imposed in HAA0112 of 2004 is maintained but it is ordered that it run concurrently with the sentence passed in cf 1540/03 and be backdated to the date of imposition of penalty in that sentence.

Gerard Winter
JUDGE

At Suva
28th February 2005