Singh v State [2009] FJHC 233; HAA009.2009 (26 October 2009)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No: HAA009 of 2009

BETWEEN:

DANIEL RITESH SINGH s/o Babu Sudish Singh
Appellant

AND:

THE STATE
Respondent

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

Counsel: Appellant in person
Mr. M. Korovou for State

JUDGMENT

Case No: 351/08

[1] On 11 December 2008, the appellant was charged with sacrilege. He pleaded guilty to the charge after waiving his right to counsel. The facts were that the appellant broke and entered a church, and stole musical instruments and electronic items to a total value of $924.95. Apart from stealing, the appellant defecated at different places inside the church before leaving. Following arrest, the appellant admitted the offence to the police. The stolen items were recovered.

[2] On 5 January 2009, the appellant was sentenced to 2 years and 4 months imprisonment.

[3] Subsequently, the appellant pleaded guilty in other cases against him and was sentenced on 27 January 2009 as follows:

Case No. 352/08

Larceny in dwelling house – 2 years imprisonment. Stolen items were recovered.

Case No. 359/08

Larceny – 12 months imprisonment. Stolen $200 cash was not recovered.

Case No. 360/08

Larceny in dwelling house – 2 years imprisonment. All stolen items were recovered except two gold rings

Case No. 361/08

Larceny in dwelling house – 2 years imprisonment. Stolen items were not recovered.

Case No. 362/08

Larceny in dwelling house – 2 years imprisonment. Stolen items were not recovered.

[4] In each case the learned Magistrate took into account whether any stolen items were recovered or not. He also took into account the guilty pleas of the appellant.

[5] The aggravating factors differed in the cases. In Case No. 361/08, the appellant stole from his grandfather’s house. The learned Magistrate considered this as a breach of trust. In Case No. 362/08, the appellant urinated in a bottle and left it on the dining table inside the complainant’s house.

[6] The appellant was 20 years old, single and unemployed. He had three previous convictions since 2006. Two were for theft related offences.

[7] The learned Magistrate quite rightly did not give any credit for previous good character.

[8] The respective sentences were imposed after these matters were taken into account. The only matter that the learned Magistrate did not take into account was the time spent in custody before the sentence for sacrilege was imposed. The appellant spent about a month in custody before he was sentenced for sacrilege. Some reduction in sentence should have been made to reflect the time the appellant spent in custody before the sentence. Otherwise, the individual sentences are within the tariff for these types of offences (Viliame Cavuilagi v. State HAA031/04; Ronald Vikash Singh v. State HAA035/02).

[9] My other concern is the manner in which the learned Magistrate applied the totality principle when he considered the issue of consecutive sentence. After imposing the individual sentences, the learned Magistrate said:

"These offences took place at different places and at different times against different victims. They should therefore be served consecutive to each other. This would mean a sentence of 9 years imprisonment but this would offend the totality principle. I therefore reduce the total sentence to 2 years 6 months.

You are currently serving a sentence of imprisonment for sacrilege. You will serve this sentence consecutive to the current sentence."

[10] The effect of the learned Magistrate’s order was that the appellant’s total overall sentence was 4 years and 10 months imprisonment. Although the learned Magistrate was correct to point out that the offences committed by the appellant were unrelated and separate, but his application of the totality principle was misconceived. When applying the totality principle the court must bear in mind the principles set out in Paula Nauma v. State [2002] FJHC 171:

"The court in applying the totality principle must also be careful not to give an impression to offenders that having committed one serious offence there is little to lose by continuing to offend. The message must be made quite clear that the more crimes an offender commits the longer the sentence is going to be. The totality principle is not some form of judicial discount for multiple offending. Hence the steps to be followed when sentencing an accused person for multiple offences are:

(a) Consider the aggregate or total sentence which must reflect the overall culpability of the offender and the totality of his conduct.

(b) When an offender is made subject to more than one sentence of imprisonment, such sentence may be either concurrent or consecutive.

(c) If concurrent sentences are being imposed, the most serious offence should receive the sentence which reflects the totality of offending. The length of other concurrent sentences should vary according to their gravity.

(d) Consecutive sentences should only be reserved for offences which are separate or unrelated or where they are totally different types of offending.

(e) Where offences are unrelated, consecutive sentences must be proportionate to the totality of the conduct. However if this will result in a series of short sentences which each individually fails to reflect the gravity of each offence charged, then longer concurrent sentences or a combination of concurrent and consecutive sentences may be used."

[11] Further, 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 served concurrently with the former sentence or any part hereof..."

[12] In Joji Waqasaqa v. State CAV0009 of 2004S (FCA AAU0054 of 2004S) the Supreme Court considered the scope of section 28(4) and said:

"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."

[13] In the present case, the learned Magistrate, instead of lowering the individual sentences, reduced the aggregate sentence. The approach was wrong. The proper approach was either to make some sentences concurrent and some consecutive, or to lower the individual sentences without resorting to make them concurrent.

[14] The error by the learned Magistrate justifies an intervention by this Court. While the individual sentences of the appellant are neither excessive nor wrong in principle, the sentence for sacrilege is reduced to 2 years imprisonment to reflect the time the appellant spent in custody before sentence. The remaining individual sentences imposed on 27 January 2009 are confirmed.

[15] The sentences in the Case No. 351/08 (sacrilege) and in the Case No. 361/08 (theft from grandfather) are ordered to be served consecutively. The sentences in all the remaining cases are ordered to be served concurrently.

[16] The total overall sentence that the appellant now has to serve is four years imprisonment. The appeal is allowed to this extent.

Daniel Goundar
JUDGE

At Labasa
26th October 2009

Solicitors:
Appellant in person
Office of the DPP for State