Rusa v State [2006] FJHC 109; HAA 138-140.2005 (10 February 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA 138-140 OF 2005

BETWEEN

NIKOTIMO RUSA
Appellant

AND

STATE
Respondent

Counsel: Appellant - In Person
Ms H. Tabete - for State

Date of Ruling/Judgment: 10^th February, 2006

EXTEMPORÉ JUDGMENT

Introduction

This is extempore judgment given at the conclusion of a sentencing appeal hearing. As such I reserve the right to perfect the judgment once it has been transcribed for me.

Background

The appellant was charged wire the following offences in the Magistrates Court:

1. No. 1684/05 Burglary and Larceny.

2. No. 1687/05 Assault occasioning actual bodily harm.

3. No, 1686/05 Assault occasioning actual bodily harm.

The particulars of the offences are:

Case No. 1684/05

Statement of Offence

BURGLARY: Contrary to Section 299(a) and LARCENY: Contrary to Section 270 of the Penal Code Act 17.

Particulars of Offence

NIKOTIMO RUSA with another between the 27th to the 28th day of April 2005 at Lami in the Central Division, by night broke and entered into the dwelling house of BRUCE ANDREW CLAY with intent to steal therein and did steal therein 1 Onkyo Amplifier, 1 Pioneer DVD Player, Sony Erricson Mobile phone, 5 shirts, 3 shorts, 1 pair jean and cash of $100.00, to the total value of $1,900.00, the properties of the said BRUCE ANDEW CLAY.

On the 9^th of September he appeared and pleaded guilty to all offences and was given a total custodial term of 5 years imprisonment.

That was divided up into three years imprisonment for the burglary and larceny and one year's imprisonment each on the two charges of assault occasioning, actual bodily harm.

The appellant contends that the five year term of imprisonment is harsh and excessive due to a broach of the totality principle.

He supports his appeal today by a written submission (dated 23 January, 20O6a in which he emphasizes that he pleaded guilty on his first appearance. shat he is remorseful and has Moaned his character. That he wants to return to his young family and support them and in respect of the assault charge against his de facto wife that he has reconciled with her.

The State have filed comprehensive written submissions and I am grateful to counsel for that.

The State emphasize in those submissions the previous conviction history of the appellant, which 1 have to say is considerable.

The fact that there were unrecovered items from the burglary and larceny and the seriousness of the assaults that occurred first against a taxi driver simply plying his trade and secondly in a bullying piece of domestic violence deserve a sentence of imprisonment, the issue is the duration.

Decision

To my mind this is in effect a one issue appeal.

I can see no error in the construction of the sentences.

The individual penalties handed out in respect of each of the charges is well within the tariff and range of available penalties.

The burglary and larceny sentence is to my mind reasonable bearing in mind the fact that the appellant has previous convictions. The sentence imposed reflects the persistence of his offending.

The penalties imposed in respect of each of the assaults is reasonable.

I can find no error of law in the construction of the individual penalties concerned.

However, when faced with a multiplicity of charges especially on a guilty plea it is incumbent on the court sentencing an accused to first set the individual penalties in respect of the discreet offending and then to sit back and assess whether car not the total term of imprisonment then constructed is just.

The State, in my view, correctly concede that the learned Magistrate may have erred in this assessment of the totality of the penalty available in respect of this offending.

Counsel responsibly submits that the term of imprisonment should be discounted by some 12 months to reflect the correct application of that principle.

I accept that submission.

Conclusion

Accordingly the sentence appeal is granted. The sentence delivered in the Magistrates Court of 5 years imprisonment is reduced in this way.

In respect of 1684/05 Burglary and larceny the 3 years imprisonment is maintained. In respect of 1685/05 the sentence of 1 year imprisonment is maintained. In respect of 1686/05 the 7 year sentence of imprisonment is maintained. However, I order that the 1 year sentences of imprisonment imposed on the assault occasioning actual bodily harm charges (1685105 and 1686/05) be served concurrently. This will thereby reduce the overall sentence from one of 5 years imprisonment to one of 4 years imprisonment effective from the original date of sentencing.

Gerard Winter
JUDGE

At Suva
10^th February, 2006