Leone v State [2011] FJHC 374; HAA011.2011(L) (8 July 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 011 OF 2011(L)

BETWEEN :

JOSAIA LEONE
1st Appellant

SAKIUSA NAULUMATUA
2nd Appellant

AND:

STATE
Respondent

Appellants in Person
Mr. S. Qica for the State

Date of Hearing : 02 June and 06 July 2011
Date of Judgment : 08 July 2011

JUDGMENT
[Appeal: Robbery]
______________________________________

[1] On the 17th February 2011 in the Magistrates Court at Lautoka these two appellants were sentenced for robbery with violence, contrary to section 293(1)(b) of the Penal Code, Cap. 17 and unlawful use of a motor vehicle, contrary to section 292 of that Code. They had earlier entered pleas of guilty to the two charges, but not at first opportunity.

[2] The first appellant was sentenced to a term of six years and five months and the second appellant to a term of six years and 3 months. Each was sentenced to serve a minimum term of 3 years before being eligible for parole.

[3] Each of these appellants is now appealing their sentence on different grounds.

[4] The first appellant's grounds go mostly to an appeal against conviction in that he claims that his plea was equivocal and entered without legal advice. He tells me orally that he now abandons those grounds and wishes to rely on his appeal against sentence only. In his grounds for an appeal against sentence he appears to claim disparity of sentence with his co-accused (the 2nd appellant) who this appellant says played a major role in the enterprise. He claims in later written submissions matters of self improvement which go to mitigation of sentence only.

[5] The second appellant asks that he be given more credit for his plea of guilty which he says was entered on the day of "arrangement". He also claims that the Magistrate erred in law by relying on the Sentencing and Penalties Decree 2009 when the charges were laid under the Penal Code Cap. 17.

[6] The facts agreed by each appellant below were that on 27 September 2009 at about 4.30am a carrier driver was robbed in Waiyavi of a phone, cash, a wrist watch and his van was thereafter unlawfully taken by these two appellants and two others. The men were passengers in his vehicle. In the course of the robbery the owner was dragged out and placed in the back seat with his hands and mouth bound with black masking tape. He was later dumped on the road side. The vehicle was subsequently found abandoned at Nabou. These two admitted the offence when interviewed under caution by the Police.

[7] The maximum penalty of robbery with violence under the Penal Code was life imprisonment. The magistrate quite correctly stated that the tariff in the Magistrates Court is between 7 and 10 years. He took as his starting point for each of the accused a term of 7 years and found that aggravating features (including gang activity and offending against a public transport driver) cancelled out the mitigating factors (sincere remorse) leaving a sentence of seven years. He allowed 9 months to the second appellant for time spent in custody and 7 months to the first appellant for the same reason resulting in the final sentences handed down (i.e. 6 years 5 months and 6 years 3 months for the first and second respectively).

[8] The Magistrate fixed a rather lenient minimum term of 3 years in recognition of their young ages.

[9] For the unlawful use of a vehicle, the Magistrate passed a fine of $100 on each with ten days imprisonment in default of payment. This aspect of the sentence does not trouble the appellants.

[10] The tariff for robbery with violence has been set in a line of cases emanating from the decision of Mr. Justice Goundar in Rokonabete [2008] FJHC 226; and it is now well settled that the tariff is between 10 to 15 years in the High Court and 7 to 10 years in the Magistrates Court. In this the Magistrate took a starting point of seven years at the very lowest point of the range.

[11] Each of these appellants was sentenced to the same starting point for the offence and appropriate allowance was made to each for the time he had spent on remand awaiting hearing. It cannot be said that the sentences are manifestly disparate as to warrant intervention.

[12] The first appellant's extensive submissions in mitigation are untimely. His claims of becoming a new and responsible person in Christ, with his missionary service as an example, were matters which were all before the learned Magistrate at the time of sentencing and it is not for an appellate Court to revisit mitigation unless there has been a manifest injustice done to the appellant.

This ground too fails.

[13] The second accused's submissions on the relevance, or more exactly the irrelevance of the Sentencing and Penalties Decree 2009 are misconceived. When this Decree was enacted (on 1st February 2010), any offences already before the Courts and which had not then been sentenced became subject to the Decree (see section 61(1) Transitional provisions). At that time all matters before the criminal courts would have been charges laid under the Penal Code and therefore they all would then become under the ambit of the new decree. In any event the section quoted by the Magistrate (section 4) represents purposes in sentencing which are to the advantage of an accused being sentenced.

This ground fails.

[14] It is now recognized in this jurisdiction that pleas if guilty entered at the first opportunity can attract discounts in sentence of up to 33% with lesser percentages attaching to later pleas. Neither of these two appellants entered a guilty plea at the first opportunity. The case was first called on the 9th October 2009. The second appellant indicated a plea of guilty on the 2nd August 2010 and did in fact do so that day: the 1st appellant pleaded guilty on the 6th September 2010.

[15] Pleas of guilty even at a late stage must be given recognition by the Courts by way of encouragement to alleviate the burden and expense of proceeding to trial. If no recognition by way of discount is given to a contrite and remorseful accused, then there would be no pleas of guilty, thereby bringing pressure on already overloaded fixtures lists.

[16] Although the Magistrate was aware that these two had entered pleas of guilty because he mentions it at the beginning of his sentence, he afforded no credit to either appellant in recognition of those pleas. He does not mention the pleas in discussing mitigation so it is apparent that he has not allowed for it, and it should be allowed.

[17] The Magistrate's final sentence of 7 years each is unassailable. An appropriate discount from that term for a late plea would be 12 months leaving a sentence of 6 years. A discount for time in remand for the first appellant would result in a sentence of 5 years and 5 months and for the second appellant 5 years and 3 months.

To that extent the appeal succeeds. I quash the sentences passed below and pass new sentences as follows:

1st appellant: 5 years 5 months

2nd appellant: 5 years 3 months

Both will serve a minimum term of 2 years 6 months.

Paul K. Madigan
JUDGE
At Lautoka
08 July 2011