Donu v State [2011] FJHC 157; HAA027.2010 (11 March 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No : HAA 027 of 2010

BETWEEN:

KAMINIELI DONU
Appellant

AND:

STATE
Respondent

Appellant in Person
Mr. T. Qalinauci for the State

Date of Hearing: 15 February and 3 March 2011
Date of Judgment: 11 March 2011

JUDGMENT

[1] On the 9th day of June, 2010 at the Lautoka Magistrate's Court, this appellant was sentenced after pleading guilty to four offences, namely:

(i) robbery with violence contrary to section 293(1)(b) of the Penal Code.

(ii) burglary contrary to section 299 of the Penal Code.

(iii) larceny from a dwelling house, contrary to section 270 of the Penal Code.

(iv) unlawful use of motor vehicle, contrary to section 192 of the Penal Code.

[2] For those offences, he was sentenced to three consecutive terms of imprisonment totaling 9 years 6 months, and a $100 fine. The Magistrate set a minimum term to be served of seven years. It is against these sentences that this appeal is made.

FACTS

[3] On the 13th December 2008 at about 8.00pm, the appellant (in the company of other men) robbed the complainant on the street in front of his house, when he was loading some property into his vehicle. The men were armed with cane knives and pinch bars. Property including a laptop, a mobile phone and cash all to the value of $6580 was stolen. The next day the men armed with cane knives, pinch bars and beer bottles broke into the same complainant's house. The security guard was chased away by beer bottles being thrown at him. In the house they stole cash, liquor and jewellery all to the value of $455. They then took the complainant's vehicle using a key stolen the previous evening.

THE APPEAL

[4] The appellant submits that as the offences were committed in December 2008, the Magistrate was in error in imposing a non-parole period as prescribed by the Sentencing and Penalties Decree 2009 which came into effect on 1st February 2010.

[5] Secondly, the appellant submits that no allowance was afforded him for time spent in remand and for his pleas of guilty.

[6] He submits finally that the sentences should not have been made consecutive; that as they all arose out of the same incident, they should have been made concurrent.

THE SENTENCES

[7] The Magistrate quite properly took the robbery offence as his "base" and from a starting point of five years added to that one year for what he found to be aggravating features. Such features included planning, gang attack, weapons, and committing an offence whilst on bail. He also included features of dubious aggravation such as minimal recovery of stolen items, prevalence of robbery offences, and commission of offences on consecutive days.

[8] The appellant proffered nothing by way of mitigation however the Court found mitigation in that he was "of young age and had a clear record". For that he deducted six months, leaving a total for the robbery of five years and six months. He further said that this discount also took into account the period the accused had been on remand resulting in a term of 2 years and 3 months.

[9] For the burglary conviction he passed a sentence of two years, increasing that by six months for the same aggravating features and deducting three months for mitigation resulting in a term of 2 years and 3 months, and then for the larceny he took a starting point of 18 months again increasing that by six months for aggravation and reducing it by 3 months for mitigation resulting in a term of 21 months.

[10] He then made all of these terms consecutive "to impose deterrent sentences in violent and brutal offences of this nature to ensure the protection of the members of the (sic) society".

[11] Finally the Magistrate stipulated a minimum term before the accused could apply for parole, of seven years.

ANALYSIS

[12] It is quite clear from the provisions of section 61(1) of the Sentencing and Penalties Decree 2009 that the Magistrate had every right to impose a minimum term on the appellant. It is a transitional provision and it reads as follows:

"61(1) – A court hearing any proceedings for an offence which was commenced prior to the commencement of this Decree shall apply the provisions of this Decree if no sentence has been imposed on the offender prior to the commencement of this Decree" [the Decree having "commenced" on 1st February 2010].

[13] The appellant has submitted very carefully researched authorities on retrospection of statutes which unfortunately do not pertain. He had not been sentenced when the Decree came into effect, so he was therefore caught by it. This ground of appeal must fail.

[14] His claim of not have been given credit for a plea of guilty or for his time spent in remand is valid to a certain extent. The sentences passed appear to have ignored the fact that the accused entered pleas of guilty, (not once but three times over the passage of the matter), however the time spent in remand was mostly of his own making, he being held for other offences apart from the instant case. There was a very short period that he was being held on remand in respect of this case alone and the Magistrate claims to have recognized that in his discount of three months.

[15] The appellant's argument that the offences are all part of the same transaction is valid only up to a point. The robbery stands apart from the burglary and the larceny because they were committed on different days. Nevertheless it is quite within the discretion of the Magistrate to order the sentences to be served consecutively as he has so ordered here for the reasons he so ordered.

[16] When sentencing for multiple offences, it is appropriate to distinguish aggravating and mitigating features for each offence and not to apply the same features to each as the Magistrate has done in this case. Although they are mostly the same, they are not necessarily the same. For example it cannot be said to be an aggravating feature when misusing the car that weapons were used and only a laptop was recovered. The Magistrate in this case is unduly punishing the accused by applying the same aggravating "top up" to all of his convictions. This is unjust.

[17] A more pragmatic way of approaching sentencing for multiple offences to take the most serious offence as the "base" sentence and to make adjustments to that for aggravation and mitigation. The other sentences for "lesser" crimes can then be absorbed into that base and made concurrent to achieve the result that this Magistrate was seeking to achieve.

[18] As the appellant has been unduly penalized and as he has not been given credit for his pleas of guilty, I propose to use my powers under section 256(3) of the Criminal Procedure Decree to quash the sentence passed below and sentence the appellant afresh.

FRESH SENTENCE

[19] For the robbery with violence committed on the 13th December, I take a starting point of seven years. The appellant was one of a group who used cane knives and pinch bars to rob a computer, keys, a phone and cash. It must have been a very frightening experience for the victim. I accept the Magistrate's findings of aggravation to the following extent:

(1) it was planned.
(2) there were more than one robber.
(3) dangerous weapons were used.
(4) it was committed whilst on bail for another offence.

For these features, I add two years to the sentence bringing it up to nine years. For his plea of guilty and short time in remand for this offence only, I deduct 3 years meaning that the sentence for this first robbery is one of six years.

[20] The next day, the appellant was one of a gang who burgled the home of the victim of the previous night's robbery. This fact in itself is seriously aggravating. I start with the Magistrate's sentence of 2 years and 6 months. For the aggravation of throwing beer bottles to scare off the security and for victimizing the same complainant, I add 18 months bringing the sentence to four years. His plea of guilty will reduce that sentence to two years and eight months.

[21] The appellant stole property in the burglary and I adopt the Magistrate's starting point of 18 months. I reduce that to twelve months to reflect the guilty plea.

[22] For the unlawful use of the motor vehicle, I sentence the applicant to 2 months imprisonment. It is pointless to fine him because he will never pay it in any event.

[23] The sentences for burglary, larceny and misuse of a motor vehicle are to be all served concurrently; however I do find force in the Magistrate's argument that a deterrent sentence is necessary to endeavour to protect society from crimes of violence. For those reasons the sentence for the robbery will stand apart from the burglary offences (which were committed on another distinct occasion) which means the appellant's total sentence to be served will be one of eight years and eight months dating from the 9th June 2010.

[24] Unfortunately this appellant spent a long time in the "system" between original charge and sentence. That was partly of his own making, constantly changing plea, and not appearing for one reason or another, and partly because of the upheaval in the Court system following the abrogation of the Constitution. Had the matter proceeded normally, then the appellant would have been sentenced earlier and therefore not caught by the parole provisions of the Sentencing and Penalties Decree 2009.

[25] The appellant feels aggrieved by this, but of course the law must be applied as it pertains on the day of sentence, which the magistrate has quite properly done. Nevertheless in recognition of the undue length of the process due to many changes of magistrates along the way, I order that the appellant now serves a minimum term of six years before being eligible for parole.

[26] He has 30 days in which to appeal to the Fiji Court of Appeal.

Paul K. Madigan
JUDGE
At Lautoka
11 March 2011