Vakatawabai v State [2008] FJHC 347; HAA074J.2008S (12 December 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 074 of 2008

Between:

MAIKA VAKATAWABAI
Appellant

And:

THE STATE
Respondent

Hearing: 21st November 2008
Judgment: 12th December 2008

Counsel: Appellant in person
Ms J. Tuiteci for State

JUDGMENT

[1] The Appellant appeals against a sentence of 4 years imprisonment, imposed by the Nasinu Magistrates’ Court on the 16th of November 2007. The appeal is filed by the Appellant on the basis that the sentence is harsh and excessive, that the learned Magistrate failed to consider that he had tried to resist criminal behavior for almost 10 years, and that other offenders in other cases had been given more lenient sentences.

[2] The State opposes the appeal saying that the learned Magistrate had sentenced for a total of 7 files and that the total sentence imposed was not harsh or excessive.

[3] The Appellant was charged, on the 19th of March 2007, with robbing Mohammed Azam of items to the total value of $229 and immediately before such robbery, used personal violence to the complainant. His plea was initially not guilty. However on the 9th of August 2007 he changed his plea to one of guilty. The facts were that on the 1st of March 2007, the complainant was in a house he was renovating as a carpenter. The Appellant entered the house, punched the complainant twice on his right eye, grabbed his neck and threatened him. He then banged his head against the wall. As a result the complainant received a laceration above his right eye, a cut on the back of his hand 2cm in length, scratches on his face and neck, bruises and swelling below his right eye and redness in his right eye. The Appellant then took a mobile phone from the complainant’s shirt pocket, and a leather wallet containing cash from his trouser pocket. The Appellant was later interviewed on arrest and he admitted the offence. The mobile phone was recovered.

[4] Sentence was delivered on the 16th of November 2007. In that period the Appellant was due to be sentenced on a total of 7 files. Nevertheless, a lapse of 3 months for sentence is unacceptable and must be discouraged. Sentence should be delivered at least the day after conviction, if not on the same day.

[5] In this case the Appellant was sentenced on court files 508/06, 509/06, 404/07, 405/07, 406/07, 407/07 and 408/07. The charges were for robbery, house breaking, damaging property, larceny, burglary and larceny from person. All offences were committed between April 2006 and March 2007. Two of the cases were for robbery with violence. The learned Magistrate said that the tariff for robbery was between 2 years to 8 years imprisonment and started at 4 years imprisonment on C/F 405/07. That is the case from which this appeal arises. She took into account the use of actual violence, the inflicted injuries and the value of the stolen items. She also considered the evidence given by the Prison Chaplain that the Appellant had shown a willingness to rehabilitate himself and that he was now a changed person. The Appellant was 25 years old, serving a term of 12 months imprisonment for another offence and was looking after his elderly parents. She sentenced him to 4 years imprisonment. She imposed a similar term for the other case of robbery with violence and terms of 12 months and 9 months, for the remaining offences. She ordered that they all be served concurrently to each other.

[6] In the circumstances of the offending in this case the Appellant was treated most leniently by the court. The circumstances of the offending, and the repetitive nature of it warranted a much higher sentence. One of his complaints is that his sentence should have run from the date of his guilty plea and not from the date on which it was imposed. This submission is of course inevitable because of the delay in delivering sentence. The Appellant was in August 2007 still serving and the sentence imposed might have run concurrently with that term thus in effect shortening his total term by several months. A Magistrates’ Court has no power to backdate sentences. Section 28(5) of the Penal Code provides inter alia:

"Subject to the provisions of this section every sentence shall be deemed to commence from and to include the whole of the day on which it was pronounced except where otherwise ordered by the Court."

[7] State counsel referred me to the decision of Grant CJ in DPP v. Jiuta Rasea [1978] 24 FLR 91. In that case it was held (at page 92):

"A Magistrates’ Court has no power to backdate a sentence of imprisonment or to order it to run from any date earlier than the date on which sentence is imposed. If a Magistrates’ Court wishes to take into account the period during which an accused has been in custody, or the time that his elapsed between his plea of guilty and the date of sentence, it may do so by an appropriate reduction in the sentence that otherwise would have been imposed."

[8] In this case the learned Magistrate could have taken the 3 month delay into account when passing sentence. However it would have been inappropriate to do so for several reasons. One is that the sentence he was serving which was imposed on the 19th of January 2007 was for absconding whilst on bail for his cases in the Nasinu Magistrates’ Court. It was a conviction which should automatically lead to a consecutive sentence. Secondly the total of 4 years imprisonment would in principle run consecutively with the existing term the Appellant was then serving. The sentence was for a series of offences (which each could have led to consecutive sentences because they were unconnected to each other). Lastly the learned Magistrate had already considered the 12 month term he was serving until March 2008, as a mitigating factor, and made the appropriate reductions. In these circumstances the sentence imposed by the Nasinu Magistrate was to run consecutive to the sentence he was serving in C/F 409/07. Section 28(4) of the Penal Code provides:

"Where a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence of imprisonment which is passed upon him under the subsequent conviction shall be executed after the expiration of the former sentence, unless the court directs that it shall be executed concurrently with the former sentence or any part thereof." (my emphasis)

[9] The effect of the consecutive term of 4 years on the total term being served by the Appellant is that he is, from the 19th of January 2007, serving a 5 year term of imprisonment. Given the nature of the offending I do not consider this total term to be excessive. All relevant matters were taken into account including his willingness to rehabilitate himself.

Result

[10] For the reasons given in this judgment this appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
12th December 2008