Tamani v State [2008] FJHC 328; HAA090.2008 (28 November 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO: HAA 090 OF 2008

BETWEEN:

ISEI TAMANI
Appellant

AND:

THE STATE
Respondent

Counsel: Appellant in Person
Mr. L. Fotofili for the State

Date of Hearing: Friday 7th November, 2008
Date of Judgment: Friday 28th November, 2008

JUDGMENT

[1] On 28 July 2008, the Appellant was convicted on his own plea of guilty to an offence of being found by night in possession of house breaking implements, contrary to s.303 (b) of the Penal Code. The maximum penalty prescribed for this offence is 10 years imprisonment if the offender has previous conviction for any misdemeanor or felony; and in all other cases the maximum is 5 years imprisonment.

[2] The Appellant was jointly charged with three other men. All three co-accused pleaded guilty albeit on different occasions but before the Appellant. The 4th co-accused pleaded guilty first and was sentenced to 9 months imprisonment concurrent with an existing imprisonment sentence of 9 months imprisonment for an unrelated offence. The other two co-accused were sentenced to 9 months imprisonment suspended for 2 years. One of them was a first time offender while the other had six previous convictions. The implements found in their possession were a bolt cutter, a pinch bar, a screw driver and a cane knife.

[3] The Appellant was sentenced to 9 months imprisonment and since he committed this offence while serving a suspended sentence for an offence of robbery with violence, his suspended sentence of 12 months was activated and made consecutive. The total sentence was 1 year and 9 months imprisonment.

[4] He appeals against sentence only. The Appellant informed the court that he understood he had a right of appeal against conviction but he did not wish to appeal it.

[5] In his grounds for appeal the Appellant allege that his sentence is harsh and excessive given that he pleaded guilty and was unrepresented. He further says that the consecutive sentence was unfair. During the hearing he also complained about the disparity in sentences imposed on the three co-accused persons.

[6] There is no set tariff for the offence under s.303 (b) of the Penal Code. Sentence up to 12 months imprisonment has been imposed for this offence (Kania v The State Criminal Appeal HAA 063 of 2002, Tirikula v The State [2005] HAA 0134J. 2005S, and Tikoitoga v State [2008] FJHC 167; HAA 049 of 2008).

[7] The sentence of 9 months imprisonment could not be considered harsh and excessive given the Appellant was facing a maximum sentence of 10 years because of his criminal record. Although the learned Magistrate did not make any reference to the Appellant’s guilty plea, the term of 9 months imprisonment which is below the term usually imposed for this kind of offence suggests that the learned Magistrate took into account the all the mitigating circumstances of the Appellant .

[8] The Appellant represented himself by choice. He was advised of his right to legal representation. At first, the Appellant was remanded in custody but later in the proceedings he was granted bail. On a few occasions, he failed to appear in court. Eventually, when the Appellant was arrested, he changed his plea to guilty. The charge was read and explained to him. He admitted the charge and the facts tendered by the prosecution. He accepted his six previous convictions and utilized the opportunity to mitigate the offence.

[9] I do not see any reason to conclude the Appellant was prejudiced by lack of legal representation. The term of 9 months imprisonment is neither wrong in principle nor manifestly excessive. The Appellant should not squabble about the disparity in sentences. The Appellant committed this offence while serving a suspended sentence for a robbery with violence imposed on 22 June 2007. The suspension was for a term of 18 months. Within 7 months the Appellant re-offended. The circumstances of the co-accused were different from that of the Appellant. None of the co-accused re-offended while serving a suspended sentence. I am not satisfied that the Appellant’s sentence is so disproportionate as to leave him with a justifiable sense of grievance (see, Bote v The State Criminal Appeal No. AAU0011 of 2005). The disparity argument is rejected.

[10] The Court’s only concern is that the Appellant had spent about 60 days in remand before sentence, which was not taken into account by the learned Magistrate. It is trite law that any time spent in custody before sentence should be taken into account in sentence (Ledua v The State Criminal Appeal CAV0004 of 2007). For this reason I reduce the sentence of the Appellant from 9 months imprisonment to 6 months imprisonment.

[11] I now deal with the order making the sentences consecutive. The proper approach, where a fresh offence has been committed during the period of the suspension of an earlier sentence and the accused is brought before the court was laid down in R v Ithell (1969) 2 AER 449 and followed by Pathik J in Matai v the State (1993) Criminal Appeal No 23 of 1993. The procedure is that the court should first sentence the offender in respect of the fresh offence by punishment appropriate to that offence, and thereafter address itself to the question of the suspended sentence. The court should then direct its mind to the issue of concurrency of sentences. In considering this issue the court should bear in mind that unless there are some quite exceptional circumstances, the suspended sentence should be ordered to run consecutively to the sentence given for the fresh offence.

[12] According to the record the learned Magistrate followed the correct approach in considering the question of concurrency of sentences. After sentencing the Appellant on the fresh offence, the learned Magistrate afforded the Appellant an opportunity to show special reasons why his suspended sentence should not be activated. The Appellant elected not to offer any reasons. The learned Magistrate then activated the suspended sentence and made an order that the sentence be served with the sentence imposed for the fresh offence. I do not find any error in the learned Magistrate’s approach and this ground of appeal is dismissed.

[13] For the reasons given, the appeal is allowed in part. The sentence of 9 months imprisonment for the offence under s. 303 (b) of the Penal Code is reduced to 6 months imprisonment consecutive with the 12 months imprisonment for robbery with violence.

Daniel Goundar
JUDGE

At Suva
Friday 21st November 2008

Solicitors:
Appellant in Person
Office of the Director of Public Prosecutions, Suva for the State