Mani v The State [2006] FJHC 14; HAA0040-41.2005 (17 January 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA0040-41 OF 2005

BETWEEN:

EPARAMA MANI
Appellant

AND:

STATE
Respondent

Counsel: Appellant – In Person
Ms V. Lidise – for the State

Date of Hearing & Judgment: 17th January, 2006

EXTEMPORÉ JUDGMENT

Introduction

This is an extemporé decision given at the conclusion of a brief sentencing appeal in respect of two matters HAA 40 and HAA 41 of 2005. As such I reserve the right to perfect the judgment once it has been transcribed for me.

Background

The appellant was effectively sentenced to a total of 14 years imprisonment on two files involving home invasion. In Criminal Case No. 309 of 2004 he was charged:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

JONE DI and EPARAMA MANI on the 23^rd day of January, 2004 at Samabula in the Central Division, by night broke and entered into the dwelling house of SAMSON GARISAU with intent to commit a felony therein; namely to steal.

SECOND COUNT

Statement of Offence

LARCENY IN DWELLING HOUSE OF PROPERTY TO A VALUE AMOUNTING TO NOT LESS THAN TEN DOLLARS: Contrary to Section 270(a) of the Penal Code, Act 17.

Particulars of Offence

JONE DI and EPARAMA MANI on the 23^rd day of January, 2004 at Samabula in the Central Division, stole in the dwelling house of SAMSON GARISAU 1 Akita DVD player valued at $500.00, 1 Panasonic Stereo hi-fi valued at $1,800.00, 1 Addidas All Black Jacket valued at $200.00, 1 Canterbury Jacket valued at $200.00, 1 Kawasaki Brushcutter valued at $1,500.00, CDs valued at $500.00 and $50.00 cash to the total value of $4,750.00 a value amounting to not less than $10.00 the properties of SAMSON GARISAU.

In Magistrates Case No. 306 of 2004 he was jointly charged with several others in respect of home invasions involving robberies with violence and unlawful use of a motor vehicle contained in six counts:

FIRST COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(a) of the Penal Code, Act 17.

Particulars of Offence

EPARAMA MANI, JONE DI ATULAGA, ADI ASENACA LAGILAGI, with 3 others on the 28^th day of January, 2004 at Lami in the Central Division being armed with offensive weapon robbed CAEZAR ANGCO of assorted shoes valued at $649.00, 11 DVD Discs valued at $650.00, I Gucci Sunglass valued at $120.00, a bag valued at $60.00 and assorted shirted valued at $2,000.00 to the total value of $3,479.00 the property of the said CAEZAR ANGCO and immediately before such robbery threatened to use personal violence on CAEZAR ANGCO with a knife.

SECOND COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(a) of the Penal Code, Act 17.

Particulars of Offence

EPARAMA MANI, JONE DI ATULAGA, ADI ASENACA LAGILAGI, with others on the 28^th day of January, 2004 at Lami in the Central Division, being armed with offensive weapon robbed MAKITALENA GONEVULAVULA of bag valued at $30.00 and $60.00 cash, to the total value of $90.00, the property of the said MAKITALENA GONEVULAVULA and immediately before such robbery threatened to use personal violence on MAKITALENA GONEVULAVULA with a knife.

THIRD COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(a) of the Penal Code, Act 17.

Particulars of Offence

EPARAMA MANI, JONE DI ATULAGA, ADI ASENACA LAGILAGI, with others on the 28^th day of January, 2004 at Lami in the Central Division being armed with offensive weapon robbed CECELIA ANGCO of assorted jewelleries valued at $26,400.00, 1 Sony mobile phone valued at $500.00, 4 Ladies wrist watch valued at $800.00, a Panasonic Voice Recorder with radio cassette valued at $125.00, 16 CDs valued at $560.00, 1 paid eye glass valued at $175.00, 2 Ladies handbag valued at $70.00 and $300.00 cash to the total value of $28,930.00, the property of the said CECELIA ANGCO and immediately before such robbery threatened to use personal violence on CECELIA ANGCO with a knife.

FOURTH COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(a) of the Penal Code, Act 17.

Particulars of Offence

EPARAMA MANI, JONE DI ATULAGA, ADI ASENACA LAGILAGI, with others on the 28^th day of January, 2004 at Lami in the Central Division, robbed RAMON ANGCO of $400.00 cash, 1 Nokia Mobile Phone valued at $2,000.00, 2 wrist watches valued at $550.00, 1 black Samonite bag valued at $55.00 to the total value of $3,005.00, the property of the said RAMON ANGCO and immediately before such robbery threatened to use personal violence on RAMON ANGCO with a knife.

FIFTH COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(a) of the Penal Code, Act 17.

Particulars of Offence

EPARAMA MANI, JONE DI ATULAGA, ADI ASENACA LAGILAGI, with others on the 28^th day of January, 2004 at Lami in the Central Division robbed RAYMOND CHRISTOPHER of 1 Discman valued at $199.00, 1 black wallet valued at $35.00, 3 pairs of shoes valued at $550.00, 1 blue bag valued at $60.00, 2 Cameras valued at $400.00, 1 pair of sunglass valued at $80.00, 1 grey jacket valued at $60.00 and assorted clothing valued at $500.00 to the total value of $1,884.00, the property of the said RAYMOND CHRISTOPHER and immediately before such robbery threatened to use personal violence on RAYMOND CHRISTOPHER with a knife.

SIXTH COUNT

Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to Section 292 of the Penal Code.

Particulars of Offence

EPARAMA MANI, JONE DI ATULAGA with others on the 28^th day of January, 2004 at Lami in the Central Division, unlawfully and without colour of right, but not so as to be guilty of stealing, took to his own use a motor vehicle registration No. DE 492.

Decision

In respect of both cases there was an early plea of guilty and in some respect a measure of co-operation with the police in the recovery of some of the property that was taken.

The facts of the matter in respect of Case 309 are that the complainant a student at the University of the South Pacific left his flat at 7.00pm on the 3^rd of February 2004. He returned at 11.00pm to find his flat had been ransacked and the items specified in the charge as missing. This appellant and his accomplice were interviewed under caution and both admitted the offences. $612.50 worth of items were recovered. The appellant admitted those facts and in mitigation emphasized his age and his responsibilities and his remorse. The learned Magistrate found that the appellant had not learned his lesson from previous convictions and sentenced him to 5 years imprisonment.

In respect of Criminal Case No. 306 of 2004 the learned Magistrate similarly found that the appellant was a habitual offender who had not learned his lesson and decided to impose a strongly deterrent sentence as a measure of justified punishment to act as a deterrence not only to the appellant but to others by way of an emphatic community denunciation of this sort of home invasion and violence.

I have been assisted today by very clear and thoughtful submissions from State’s Counsel in which Counsel has conceded in respect of the first matter (Case No. 309 of 2004 contained in Appeal 40 of 2005) that the sentence should be reduced to bring it into line with the related appeal judgment of my sister Justice Shameem (HAA0094 of 2004S) where the penalty against the co-accused was reduced to 2 years imprisonment in respect of each count to be served concurrently.

Somewhat unsurprisingly the appellant in his written submissions and in his brief address to me this afternoon emphasizes the fact that the sentence is manifestly harsh and excessive. He relies primarily on the sad fact that his father has passed away since he has been sent to jail and that his mum is living alone and that this has motivated him to make better man of himself in the future.

Appeal 40 of 2005

In respect of this Appeal (HAA0040 of 2005) I concur with the judgment delivered by my sister Justice and on that basis and the principle of parity I quash the 5 year term imposed by the learned Magistrate in Case 309 of 2004 and I impose a sentence in respect of Count 1 of 2 years imprisonment. In respect of Count 2 – 2 years imprisonment. These sentences to be served concurrently with each other.

Appeal No. HAA0041.2005.

In my mind this offending presents an entirely different class of case. This was home invasion at its very worst. It involved several professional burglars armed with weapons entering the sanctity of the victim’s home at night. The home invasion was violent. It involved threats and assaults of the various victims and the theft of a large quantity of their properly and motor vehicle to a total value of $37,388.00 of which only $19,060.00 was recovered. This appellant has similar previous convictions.

The Fiji Court of Appeal in Singh & Others vs The State, AAU008 of 2000S (Sheppard, Gallen and Ellis JA) reviewed sentencing tariffs for robbery. They were there dealing with the planned armed robbery of a bank where the offenders were armed with pinchbars and cane knives and got away with the $74,000.00 having first terrorized bank staff. In that crime only $11,070.00 was recovered and each appellant had previous convictions. The court approved the sentencing Judge’s approach and accepted the relevance of two New Zealand decisions The Queen v Moananui [1983] NZCA 66; [1983] NZLR 537 and The Queen v Marco [2002] NZLR 170. These tariff decisions of the New Zealand Court of Appeal are tempered by the difference in the available sentence. The maximum penalty in Fiji being life imprisonment. The maximum sentence in New Zealand at that time being 14 years imprisonment.

I concur with the judgment of my brother Justice Gates in The State v Lebobo, HAC 016/02S, a criminal appeal heard in High Court in Suva on the 6^th and 7^th of April in 2004. In Lebobo Justice Gates observed the increasing community concern in Fiji at home invasions and that by their sentences the courts must try to protect people in their homes and must take a stronger line when home invasion crimes are committed against the vulnerable people such as the young or the old, the weak or the infirm.

That is a sentiment with which I totally concur. Home invasions are a particularly traumatic intrusion into the lives of citizens. When a home is invaded and families are set upon by intruders at night the offenders violate the sanctity of the family. These acts not only impact the lives of their immediate victims but instill fear in the whole community creating a siege like mentality that is the antithesis of family life. That is completely unacceptable. Entry into dwellings at night and assaults on occupants will accordingly draw stern sentences denouncing such conduct.

I also have to keep in mind that repeat and recidivist offenders must by virtue of the fact that they fail to take on board the lessons of deterrence must expect, when they continue their offending, harsher sentences and longer terms of imprisonment. This, in my mind, serves three community needs. Firstly, it punishes the offender for the circumstances of the crime. Secondly, it acts as a deterrent to others and lastly it provides society with a rest from the professional thief and the violent and unrepentant home invader.

It was no doubt these sorts of considerations that motivated the learned Magistrate to impose the sentence that he did in this Criminal Case No. 306 of 2004. My difficulty with the sentence is that while I have complete sympathy with the sentiment expressed by the learned Magistrate in his written decision the sentence itself lacks any clear construction and so I am unable to assess its quality or application of principle.

In this case while imposing a sentence of 9 years imprisonment on this offender a sentence of 4 years imprisonment was imposed on the co-accused who co-incidentally happened to be the same person involved in the earlier offending referred to in this judgment.

There is no discernable reasoning in the judgment as to why there was such a difference made in the duration of sentence between those two except to say that the learned Magistrate was concerned to ensure that there was parity of sentencing for the total length of imprisonment. The result being that they each received in respect of quite separate offending 14 years imprisonment.

It is, therefore, now my duty to try and assess an appropriate sentence on HAA0041 of 2005 and I do so in this way. I fix a starting point for this home invasion at 8 years imprisonment. The aggravating features applicable in this case are the wide range and age of the victims, the use of violence to the victims, the use of threats against the victims and the terror psychological and emotional harm accompanying this home invasion at night and the limited amount of property recovered. I would add 2 years to the starting point for these aggravating features making a total available sentence of 10 years imprisonment.

However, balanced out against those aggravating features are the mitigating factors such as an early plea of guilty. The fact that there was some amount of co-operation with the police and the other personal circumstances of this particular appellant. In my view the best mitigation is an early guilty plea. Courts have often recognized that sparing the victim re-living the trauma of violent crime at trial deserves full recognition. In addition the assistance to the due process of justice sparing the expense of trial justifies some discount.

For these reasons a discount of 3½ years is appropriate. That brings the sentence down from one of 10 years imprisonment to one of 6½ years imprisonment.

However, beyond that I have to consider the totality of the sentence of imprisonment that was imposed. In his judgment in 306 of 2004 the learned Magistrate was keen to ensure that both of these offenders received the same overall time of imprisonment. The fact of the matter now is that by virtue of his appeal on an unrelated matter the co-accused is serving a total of 8 years imprisonment. That is because the learned Magistrate in this matter sentenced him to 4 years imprisonment. I don’t accept that sentence of 4 years of imprisonment was appropriate. This was serious offending committed by repeat offenders invading a home at night. It deserved more than 4 years imprisonment and in my view a sentence of 6½ years imprisonment is the appropriate sentence.

In respect of 306 of 2004 I quash the 9 year sentence imposed by the learned Magistrate on the 30^th of March, 2004 and I substitute it with sentence of six years six months for each of the robberies with violence and two years in respect of the unlawful use of a motor vehicle to be served concurrently. A total of six and a half years in jail.

Conclusion of Appeal HAA0040 & 41 of 2005

This then is the ultimate result. The appeals are granted. In HAA0040 of 2005 the effective sentence is one of 2 years imprisonment. In HAA0041 of 2005 the effective sentence is one of 6½ years imprisonment. The total sentence to be served by this appellant is therefore reduced from one of 14 years imprisonment to one of 8½ years imprisonment.

Gerard Winter
JUDGE

At Suva
17th January, 2006