Ratubalavu v State [2011] FJHC 87; HAA26.2010 (22 February 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 26 OF 2010

BETWEEN:

SENIVALATI RATUBALAVU
Appellant

AND:

STATE
Respondent

Appellant in Person
Ms M. Fong for the State

Date of Hearing: 18 November 2010, 31 January and 16 February 2011
Date of Judgment: 22 February 2011

JUDGMENT

[1] The appellant, having been given leave to appeal out of time, appeals against a sentence imposed by a Magistrate in Ba on the 21st December 2009. He had entered a plea of guilty to one count of unlawful use of motor vehicle and three counts of robbery with violence on the 11th November 2009 and in advance of sentence he had advanced both written and oral submissions in his own mitigation.

[2] The facts of the case are easily distilled from the succinct and exact summary provided in the State's submissions, and I can do no better than to reproduce that paragraph here.

[3] The brief facts are that on the 14th August, 2008, the appellant, with a co-accused, were at Saweni Beach outside of (sic) Lautoka where they unlawfully took a black Pajero car belonging to one S. Harseman. They drove away towards Lautoka City. Upon reaching Lautoka, they proceeded to commit three robberies – first, they proceeded to the Lautoka wharf where they robbed Richard Joseph and Roger Chetty of $4000 cash; secondly, they then robbed Jeke Bainikoro, an attendant at a petrol service station of a cash till (which they then discarded – it being empty) and thirdly, after picking up two more accomplices, they entered a Total Service Station and robbed the attendants of cigarettes, recharge cards and $490 cash from the till. A knife was used in the commission of these robberies.

[4] In sentencing the appellant, the learned Magistrate took a starting point for each robbery of ten years. He then found that aggravating features included threats of violence on the second and third counts, and that he acted with others on the fourth count. He also found that there was an indication of prior planning which he held to be an aggravating feature. For these features he added five years to the starting point. For his guilty plea and "co-operation" he reduced the sentence by three years to a total term of 12 years. This is the sentence he passed on each robbery to be served concurrently.

[5] For the unlawful use, he passed a concurrent term of imprisonment of 6 months, which is not challenged on appeal.

[6] The appellant's co-accused was 3 months previously sentenced to a term of 2 years for the third robbery. The co-accused was a young offender and had entered a plea of guilty at an earlier stage than the appellant.

[7] The appellant appeals on the following grounds:

(i) That not enough discount was afforded to him for the guilty plea.

(ii) He was given no credit for time in remand.

(iii) The Magistrate exceeded his jurisdictional sentencing limit.

(iv) There is an obvious disparity in sentence.

(v) The sentence was harsh and excessive in the circumstances.

[8] Ms Fong for the State has with her usual fairness conceded grounds (ii), (iii) and (iv).

Analysis

[9] It is manifestly obvious that the sentences passed below are unsatisfactory. First, the Magistrate at that time had no jurisdiction to pass a sentence of more than ten years for any one offence, or to pass a cumulative sentence of more than 14 years for multiple offences. Therefore to sentence the accused to 12 years for each robbery was ultra vires. It is also clear that to make violence an aggravating feature to an offence of robbery with violence is superfluous; the use of violence is already subsumed in the offence.

[10] The accused was quite obviously given no credit for the time had spent in remand nor was he afforded enough discount for his plea of guilty, even though it was not entered at the first available opportunity.

[11] The appellant can quite rightly feel aggrieved at the sentence passed on his co-accused in the third robbery. The co-accused was 23 years of age and pleaded guilty on the 28th September 2009. [This appellant pleaded guilty on the 11th November 2009]. This is what the Magistrate said when sentencing the co-accused:

"I take two years as a starting point. I add 6 months for the threatened violence and for the planning for the robbery and the fear caused at the time. I deduct 6 months for the co-operation with the Police and your plea of guilt (however late it is)."

Even though this sentence is still in error in that time is added for "violence", the resultant sentence is clearly manifestly inadequate, and one would think that the same Magistrate is looking at two quite different types of offending.

[12] Apart from the general principle that every person has the right to equality before the law, the Supreme Court said in Joji Waqasaqa – CAV0009/2005S:

"it is clearly established that an unjustified and disproportionate disparity between the sentences imposed upon co-accused may result in an otherwise appropriate sentence being reduced on appeal".

[13] The New Zealand Court of Appeal in Lawson [1982] 2 NZLR 214, said:

"The courts must bear in mind that public confidence in the administration of justice is best preserved if justice appears to be administered even-handedly. It is for this reason that the disparity in sentences imposed on co-offenders may justify a reduction in the sentence imposed on one which would otherwise be appropriate."

[14] The differences in sentence here for the same crime, "(no matter how late the plea)", is repugnant and totally unacceptable. The two year sentence for violent robbery should have been appealed but it was not. This appellant has every reason to be aggrieved and he must get some credit for the disparity.

[15] There is no discernable justification for such a disparity; that is 2 years against 12 years for the same crime.

[16] The appellant prays that the Magistrate took a wrong starting point and that he was in error in thinking that the Magistrates Court "range" for robbery with violence was between 7 and 10 years. When this Court "ventured" (as the appellant puts it) in Baleinakeba – HAA 8/2010 that in the Magistrates Court the range should be 7 to 10 years, it was based on the Basa line of cases, increasing the penalties in the High Court for this crime. Clearly, it is for the Court of Appeal to ultimately decide the range that Magistrates should look at for robbery with violence, or now as it is termed aggravated robbery, but it is nevertheless clear that the Courts are imposing higher penalties for this crime than they were in the past. The appellant has no authority for saying that the tariff should be 4 to 8 years.

[17] Given that the applicant's sentence was so unfairly assessed in the Court below, the appeal against sentence is allowed. The sentences passed by the magistrate are quashed pursuant to section 256(3) of the Criminal Procedure Decree 2009 and the following sentences are substituted.

[18] For the offence of robbery with violence, a starting point of 8 years is taken. For the aggravation of acting in concert with another or others a period of two years is added making an interim total of 10 years. The facts below disclose nothing by way of planning or premeditation and I therefore add nothing for that. It appears in addition that for most of the time this case was before the Magistrates the accused was a serving prisoner and there is therefore no time for him to be credited with for being held on remand. For his plea of guilty, I will not deduct one third because it was not made at the earliest opportunity; however I do give him a discount of two years for his plea.

[19] For each offence of robbery, I sentence him to a term of eight years. They were all committed in a "spree" on the same day and therefore each term will be served concurrently. To the term of eight years I add 2 years as I have said for the aggravation of "others", bringing the total to ten years. For his plea of guilty I deduct two years, making a total of eight years. In recognition of the absurd disparity of sentence I deduct a further two years, meaning that for each of the robbery offences, he will serve a total term of six years, concurrently.

[20] The sentence for unlawful use of a motor vehicle is not in dispute, and I restore the sentence of six months for that offence, also to be served concurrently with the robbery offences.

[21] The appellant will serve a term of six years dating from 21 December 2009, and he will not be eligible for parole until he has served five years of that term.

Paul K. Madigan
JUDGE

At Lautoka
22 February 2011