Eremasi v State [2009] FJHC 232; HAA002.2009 (26 October 2009)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No: HAA002 of 2009

BETWEEN:

JONE EREMASI
Appellant

AND:

THE STATE
Respondent

Date of Hearing: 28th August 2009
Date of Judgment: 26th October 2009

Counsel: Appellant in person
Mr. T. Muloilagi for State

JUDGMENT

[1] This is an appeal against sentences imposed on the appellant in the Magistrates’ Court after he pleaded guilty to the following offences:

Case No. 392/07

Statement of Offence

HOUSE BREAKING ENTERING AND LARCENY: Contrary to section 300(a) of the Penal Code Cap 17.

Particulars of Offence

JONE EREMASI on the 2nd day of July 2007 at Labasa in the Northern Division broke and entered into the dwelling house of Sumintra Devi d/o Ram Prit and stole therein 5 small gold sovereign $500.00, 1 gold necklace $1,000.00, 1 mangal sutra $1,000.00, 1 pair golden bangles $1,000.00, 2 gold rings with red spot $200.00, 3 piece uma gold rings $100.00 and 1 wrist watch valued $10.00 to the total value of $3,810.00 the property of Sumintra Devi d/o Ram Prit.

Sentenced to 2 years imprisonment.

Case No. 506/08

Statement of Offence

House Breaking with Intent to Commit a Felony: Contrary to section 302(2) of the Penal Code Cap 17.

Particulars of Offence

JONE EREMASI on the 17th day of March, 2008 at Labasa in the Northern Division broke and entered into the dwelling house of HASIM KHAN s/o JAHADAR KHAN with intent to commit a felony namely larceny.

Sentenced to 16 months imprisonment.

Case No. 507/08

Statement of Offence

House Breaking Entering and Larceny: Contrary to section 300(a) of the Penal Code Cap 17.

Particulars of Offence

JONE EREMASI, on the 22nd day of July 2008 at Labasa in the Northern Division broke and entered into the dwelling house of Amrit Maharaj s/o Ashok Maharaj and stole therein one Nokia Mobile phone valued $700.00, Perfuems valued $100.00, Eye glass valued $200.00 and assorted groceries valued at $20.00 to the total value of $1020.00, the property of Amrit Maharaj s/o Ashok Maharaj.

Sentenced to 2 years imprisonment.

Case No. 508/08

Statement of Offence

LARCENY: Contrary to section 259 & 262 of the Penal Code Cap 17

Particulars of Offence

JONE EREMASI, between 28th day of August 2008 and 29th day of August 2008 at Labasa in the Northern Division, stole a Homelite [1500] model Chainsaw valued at $3,800.00 the property of Abhinesh Monish Karan s/o Jay Karan.

Sentenced to 10 months imprisonment.

[2] According to the record, the appellant has another case which inadvertently has not been dealt with by the Magistrates’ Court. The Case No. 393/07 is remitted to the Magistrates’ Court for continuation of hearing. The charge in that case is:

Statement of Offence

HOUSE BREAKING ENTERING AND LARCENY: Contrary to section 300 of the Penal Code Cap 17.

Particulars of Offence

JONE EREMASI on the 6th day of August 2007 at Labasa in the Northern Division broke and entered into the dwelling house of BHAGWANTI DEVI d/o HARI DEO and stole from therein a Puma brand canvas valued at $140.00, one hot ocean T/shirt valued at $20.00, one hot ocean shorts valued at $20.00, flash drive/mp3 player valued at $150.00, discman valued at $50.00, purse containing $25.00 to the total value of $405.00 the properties of the said BHAGWANTI DEVI d/o HARI DEO.

[3] Initially, the appellant appealed against conviction and sentence, but at the hearing of the appeal, the appellant pressed on with appeal against sentence alone. However, since the appellant was unrepresented, I reviewed the record to satisfy myself that the guilty pleas were freely and voluntarily made.

[4] The appellant was advised of his right to counsel when he was arraigned. He waived his right to counsel and pleaded guilty. The appellant informed the court that he understood the charges and was freely pleading guilty. He admitted the facts that disclosed the charged offences. He was afforded an opportunity to mitigate. The appellant sought forgiveness from the court.

[5] The appellant had 26 previous convictions but the learned Magistrate disregarded convictions that were more than 10 years old. In mitigation the appellant said he was 30 years old and was single. He assisted his father in their farm.

[6] The appellant has an appalling history of theft and house breaking offences.

[7] The learned Magistrate was justified to treat the appellant as a recidivist deserving a longer sentence. The learned Magistrate applied the principles set out by Winter J in Viliame Cavuilagi v. State Cr. App. No. HAA031 of 2004:

"Repetitive, recidivist offending must inevitably lead to longer sentences of imprisonment unless the offender can demonstrate special circumstances that motivate the court to sentence otherwise. This principle meets three of society’s needs. Firstly it might act as a deterrent to the offender and others who fall into a pattern of semi-professional crime to support themselves. Second society is entitled to sideline or warehouse repeat offenders out of the community for longer periods of time so that at least during the term of incarceration they cannot wreck havoc on the lives of law abiding citizens. Third offenders deserve punishment that fits the circumstances of the crime."

[8] The individual sentences were within the tariff for these types of offences (Viliame Bale v. State HAA032-33/04S 4 June 2004; Aporosa Rageci v. Reginam SC HAA5/72L 24 February 1972; State v. Ronald Vikash Singh HAA 35/02 23 May 2002.

[9] However when it came to considering the totality principle the learned Magistrate said:

"These offences took place at different times against different individuals and they should be served consecutive to each other for a total sentence of 6 years and 2 months. I consider however that this offends the totality principle and I reduce your sentence to 4 years imprisonment."

[10] The approach was wrong. The proper approach is set out in section 28(4) of the Penal Code and as interpreted by the Supreme Court in Joji Waqasaqa v. State CAV0009 of 2004S (FCA AAU0054 of 2004S) as follows:

"This provision means that sentences for different offences that are imposed when conviction occurs separately are to be served consecutively unless by directing concurrency or partial concurrency the court otherwise orders. A similar principle applies where conviction of two or more distinct offences occurs at one trial, although in that event there is no option of partial concurrency [(See Criminal Procedure Code, s.12(1)] See also Prisons Regulations, reg. 139, which also provides for the manner of calculating remissions where there is partial concurrency.

These provisions mean that there should be no automatic resort to concurrency where sentences are imposed for separate offences. Indeed, we would go further and state that entire concurrency needs reasoned justification lest the effective punishment for one offence is rendered nugatory due to the prisoner serving it entirely while serving the sentence imposed earlier for a separate offence."

[11] Clearly the learned Magistrate erred in lowering the aggregate sentence instead of reducing the individual sentences to arrive at an appropriate overall sentence to reflect the total criminality involved. The error can be corrected in the following manner. The individual sentences are confirmed. The sentences in Case No. 392/07 and in Case No. 507/08 are to be served consecutively. The sentences in the remaining cases are to be served concurrently. Apart from this correction, the appeal against sentence is dismissed. The overall sentence of 4 years imprisonment remains.

Daniel Goundar
JUDGE

At Labasa
26th October 2009

Solicitors:
Appellant in person
Office of the DPP for State