Waqa v State [2008] FJHC 269; HAA085.2008 (3 November 2008)

IN THE HIGH COURT OF THE FIJI ISLANDS
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO: HAA 085 OF 2008

ISOA WAQA

V

THE STATE

Appellant in person
Mr. Daurewa for the State
Date of Ruling: 3 November 2008.

RULING

1. Isoa Waqa you were charge with one count of Escaping from Lawful Custody, contrary to section 138 of the Penal Code Cap 17 and one count of Resisting Arrest, contrary to section 247(b) of the Penal Code Cap 17.
   
2. Your right to counsel was explained to you and waived the same. The charges were explained to you and you advised the court that you understood it and that you plead guilty to the first count and not guilty to the second count. The second count was subsequently withdrawn.
   
3. You were sentenced to 9 months imprisonment.
   
4. You appeal against this sentence on the basis that it is harsh and excessive and you also complain about the disparity in the sentence given to you, compared to tat given to Meli Tabanioca, you co-offender. Your co-offender was charged separately but with identical charges arising from the same situation. He was sentenced to 150 hours of community work by the Nasinu Magistrates Court on 20 October 2008.
   
5. I have reviewed the sentence passed on you. There are some errors in the approach adopted by the trial Magistrate. The first is that he did not separately discount the guilty plea from the mitigating factors ( Hem Dutt v The State[2006] FJCA 59) secondly he took into consideration previous convictions as an aggravating factor: Jonetani Sereka v The State [2008] FJHC 88.
   
6. I would review you sentence as follows: the starting point given the fact that it’s a repeat offending on your part and the need to deter and protect public interest, I agree that 9 months imprisonment is correct.
   
7. For the mitigating factors identified and accepted by the trial magistrate, I would reduce the term of imprisonment by 4 months to 5 months. For the aggravating factors identified excluding the reference to the previous conviction of the appellant, I would increase the sentence by 3 months to 8 months imprisonment.
   
8. For the guilty plea, I would further discount the sentence by 2 months to 6 months imprisonment.
   
9. You have complained that your sentence also violates the principle of parity in sentences. Meli Tabanioca the person with whom you committed the same offences and on 20 October 2008 in the Nasinu Magistrates Court he was sentenced to 150 hours community work.
   
10. I reviewing your claim I have considered the Court of Appeal’s statement in Bote v The State [2005] FJCA 58, where it said:
    

‘ The parity principle applies where the sentence imposed on co-offenders are so disproportionate as to leave the offender with the larger sentence with a justifiable sense of grievance.’

11 Blackstone’s Criminal Practice (1993) at E1.12 states the following:

‘ Where there is disparity between sentences imposed on co-accused, the higher sentence may be reduced on appeal where right-thinking members of the public, with full knowledge of the facts and circumstances, learning of the sentence would consider that something had gone wrong with the administration of justice.’

12 I am satisfied that on the facts of this case, a reasonably minded independent observer aware of all the circumstances of the offence and the offenders faced with the disparity could well consider that there was something wrong.

13 In that light, I would order that the balance of the substituted sentence of 6 months imprisonment be suspended forthwith and the appellant be release forthwith if he is not subject to another court order in another case.

Order

14 I make the following orders;

1. The sentence of 9 months imprisonment in the Magistrates Court is set aside to be substituted with 6 months imprisonment effective from 25 June 2008;
   
2. The balance of the substituted sentence be suspended with immediate effect;
   
3. Appellant to be released forthwith if he is not subject of another court order arising independent of this one.
   

Isikeli Mataitoga
JUDGE

At Suva
3 October 2008