State v Sorovanalagi - Judgment [2012] FJHC 1135; HAR006.12 (31 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
REVISIONAL JURISDICTION

Revisional Case No: HAR 006 of 2012

BETWEEN:

THE STATE

AND:

1. ALIPATE SOROVANALAGI
2. WAISALE SALI
3. USAIA TADAU

Hearing: 30 May 2012
Judgment: 31 May 2012

Counsel: Mr Y. Prasad for State
Mr J. Savou [Duty Solicitor] for all Respondents

JUDGMENT

[1] This is a review of the sentences imposed on the respondents for robbery with violence in the Magistrates' Court, Nausori on 5 March 2012. This Court came to know about the said sentences when the third respondent who is a professional soccer player applied for the release of his passport held by the High Court Criminal Registry, Suva.

[2] After a direction hearing, the Court received submissions from the State and counsel for the respondents. I am grateful to both parties' counsel for their helpful submissions.

[3] The revisionary jurisdiction of this Court is governed by section 260 of the Criminal Procedure Decree. Section 260(1) states:

The High Court may call for and examine the record of any criminal proceedings before any Magistrates Court for the purpose of satisfying itself as to –

(a) the correctness, legality or propriety of any finding, sentence or order recorded or passed; and

(b) the regularity of any proceedings of any Magistrates Court.

[4] The yardstick for the review in this case is the correctness of the sentences imposed on the respondents.

Proceedings in the Magistrates' Court

[5] The respondents were charged with one count of robbery with violence, on 28 April 2004. On 12 May 2004, they appeared in the Magistrates' Court to answer to the charge. After a brief appearance, all three respondents were further remanded in custody.

[6] Subsequently, the respondents were released on bail. Shortly after being released on bail, the respondents started playing "cat and mouse" in the Magistrates' Court. The court record shows the respondents took turns to be absent from the proceedings. Bench warrants were issued but not executed by the police. Between 2004 and 2012, the case was adjourned approximately seventy times. On approximately thirteen occasions the trial was vacated.

[7] In August 2011, the first respondent applied to the High Court for stay of proceedings on the ground of unreasonable delay. On 23 August 2011, Fernando J refused that application after noting that the respondents were largely responsible for the delay and that a fair trial could still be held despite the delay. In December 2011, the respondents pleaded guilty to the charge. Mitigation on behalf of the respondents was received on 14 December 2011. For reasons not clear from the record, the sentences were handed down three months later, on 5 March 2012.

[8] The learned Magistrate gave detailed reasons for the sentences imposed on the respondents. After convicting the respondents on their guilty pleas, the learned Magistrate referred to the facts of the case.

Facts

[9] The facts were that on 26 April 2004 at about 9.30pm, three men armed with cane knife, pinch bar, iron rod and broken bottles invaded Kundan Singh Service Station at Princess Road, Tamavua. A fourth man remained in the vehicle used in the robbery. The intruders broke the glass door of the shop that was manned by a female attendant. Two intruders guarded the entrance while the third entered the shop. The shop attendant was slapped in her face by the intruder. The intruders fled in the getaway car after stealing cash, phone cards and cigarettes to a total value of $839.00. Although the role of each respondent was different, they admitted acting in concert, after being caught on the same night.

[10] After stating the facts, the learned Magistrate took into account the personal circumstances of each respondent at the time of the sentencing.

Personal circumstances of the first respondent

[11] The first respondent was 41 years old and married with children. At the time of the offending, he was 34 years old. He was the sole breadwinner for his family. He was employed as a mini-van driver and was earning $230.00 per week. He admitted he was the ringleader and had influenced the other two respondents to participate in the robbery. Items to a total value of $500.00 were recovered. He offered to compensate the victim and did in fact pay restitution for the unrecovered value. His counsel told the learned Magistrate that the respondent has reformed and was an interim pastor of an apostolic church in Nausori.

Personal circumstances of the second respondent

[12] The second respondent was 34 years old and was separated from his partner and child. He earned a living by farming. He was the driver of the vehicle used in the robbery and he did not receive any proceeds of the crime.

Personal circumstances of the third respondent

[13] The third respondent was 31 years old. At the time of the offending, he was 24 years old. He was married with a child. He also supported his mentally ill mother and physically handicapped younger brother. He was engaged in a casual employment with Goodmen Fielder and earned about $140.00 per week. The learned Magistrate noted he was contracted by Rewa team to play professional soccer and was destined for an overseas sporting contract. His counsel submitted written character references from the clubs the third respondent was associated with, namely, the United Sports Club, Rewa and the Rewa Football Association.

Tariff for robbery with violence

[14] After outlining the personal circumstances of each respondent, the learned Magistrate identified the tariff of 4-7 years imprisonment for robbery with violence based on Basa v State [2006] FJCA 23. In Basa, the Court of Appeal ruled that the old tariff of 4-7 years for robbery with violence, which was based on New Zealand guideline, should no longer apply in Fiji because of the different maximum penalty that was available under the New Zealand statute. The Court of Appeal stressed that Fiji should follow the English guideline, because in both countries, the maximum sentence prescribed for robbery with violence was a life imprisonment.

[15] Following Basa's case, the High Court increased the tariff for robbery with violence to 8-14 years imprisonment. This Court reviewed post Basa cases in State v Rokonabete [2008] FJHC 226; HAC118.2007 (15 September 2008) and said at paragraphs 9-10:

"From these authorities, the following principles emerge. The dominant factor in assessing seriousness for any types of robbery is the degree of force used or threatened. The degree of injury to the victim or the nature of and duration of threats are also relevant in assessing the seriousness of an offence of robbery with violence. If a weapon is involved in the use or threat of force that will always be an important aggravating feature. Group offending will aggravate an offence because the level of intimidation and fear caused to the victim will be greater. It may also indicate planning and gang activity. Being the ringleader in a group is an aggravating factor. If the victims are vulnerable, such as elderly people and persons providing public transport, then that will be an aggravating factor. Other aggravating factors may include the value of items taken and the fact that an offence was committed whilst the offender was on bail.

The seriousness of an offence of robbery is mitigated by factors such as a timely guilty plea, clear evidence of remorse, ready co-operation with the police, response to previous sentences, personal circumstances of the offender, first offence of violence, voluntary return of property taken, playing a minor part, and lack of planning involved."

16] In the present case, the learned Magistrate picked 3½ years as his starting saying the figure was a compromise between the two different figures suggested by counsel for the State and counsel for the respondents. The sentence was increased by 2 years for an attack on a service station and for the use of weapons. The sentence was reduced by 2 years for the guilty plea, 1 year for the payment of restitution and 6 months for not causing physical injuries. The final term was 2 years imprisonment for each respondent.

[17] The selection of a starting point for a sentence should be based on an objective seriousness of the offence. In this case, an appropriate starting point was between 8-14 years imprisonment. By picking 3½ years imprisonment from the old tariff, the learned Magistrate fell in error.

[18] Further, the learned Magistrate made more than 1/3 reduction in sentence for guilty plea. The discount of 1/3 reduction for guilty plea was an error. The respondents pleaded guilty out of convenience, after causing almost 8 years of delay. The guilty pleas were not a true reflection of genuine remorse. The weight that should have been attached to the guilty plea should have been based for saving the court time and resources. A 10% reduction would have been more appropriate.

[19] While the guilty pleas of the respondents and the payment of restitution mitigated the offending, the fact that no physical injury was caused to the victim did not mitigate the offending. By taking into account lack of physical injury to reduce the sentence was an error.

[20] The seriousness of any robbery is assessed by the degree of force used or threatened. In this case, the entry to the shop was gained by breaking open the glass door. The female sales assistance was slapped in her face and weapons were brandished to subdue any resistance from the victim or anyone coming to her rescue. The degree of force used was not trivial. The offenders were determined to carry out their criminal intentions and any resistance would no doubt have resulted in infliction of physical injury. Thus, this was a daring armed robbery committed by a gang of thugs on a vulnerable female sales assistance. These features aggravated the offending.

Suspension of sentences

[21] After arriving at a term of 2 years imprisonment for each respondent, the learned Magistrate directed his mind to the issue of suspension. The learned Magistrate identified three reasons to suspend the sentences for 2 years.

[22] I accept that the Magistrates' Court has discretion to suspend a sentence if the final term imposed is 2 years or less. But that discretion must be exercised judiciously, after identifying special reason to suspend the sentence. The special reason can vary depending on the facts of each case.

[23] In DPP v Jolame Pita (1974) 20 FLR 5, Grant Actg CJ (as he then was) held that in order to justify the imposition of a suspended sentence, there must be factors rendering immediate imprisonment inappropriate. In that case, Grant Actg CJ was concerned about the number of instances where suspended sentences were imposed by the Magistrates' Court and those sentences could have been perceived by the public as 'having got away with it'. Because of those concerns, Grant Actg CJ laid down guidelines for imposing suspended sentence at p.7:

"Once a court has reached the decision that a sentence of imprisonment is warranted there must be special circumstances to justify a suspension, such as an offender of comparatively good character who is not considered suitable for, or in need of probation, and who commits a relatively isolated offence of a moderately serious nature, but not involving violence. Or there may be other cogent reasons such as the extreme youth or age of the offender, or the circumstances of the offence as, for example, the misappropriation of a modest sum not involving a breach of trust, or the commission of some other isolated offence of dishonesty particularly where the offender has not undergone a previous sentence of imprisonment in the relevant past. These examples are not to be taken as either inclusive or exclusive, as sentence depends in each case on the particular circumstances of the offence and the offender, but they are intended to illustrate that, to justify the suspension of a sentence of imprisonment, there must be factors rendering immediate imprisonment inappropriate."

[24] The above guidelines are still the state of law in Fiji and are binding on the Magistrates' Court.

[25] Earlier on in the same judgment, Grant Actg CJ said:

"It is only in exceptional circumstances that the suspension of a term of imprisonment is warranted in cases involving violence..."

[26] In 1991, Tuivaga CJ, after being concerned about the number of instances of suspended sentences imposed for serious offences, issued a practice direction on the use of suspended sentences. The Practice Directions No. 1/91 reads:

"This is a power that should be used with utmost care and only in suitable cases as envisaged by the law. Except in exceptional circumstances, the power is certainly not intended to be used in cases such as the following:

1. Perpetration of violence upon a person or persons resulting in serious bodily injuries;

2. Abduction for criminal purposes;

3. Grave sexual offences;

4. Causing substantial or serious damage to other people's property;

5. Frauds involving large sums of money;

6. Aggravated robbery;

7. Causing death by dangerous or reckless driving where alcohol is a substantial factor or where the circumstances of driving disclosed a wanton disregard for human lives; and

8. Any other case where the degree of criminality borders on evilness."

[27] In DPP v Saviriano Radovu (1996) 42 FLR 76 (22 May 1996), Fatiaki J (as he then was) adopted the Practice Direction No. 1/91 and said at p.80:

".... offences which fall within any of the three broad categories..., namely, (i) offences involving personal violence; (ii) offences involving the possession or use of firearms, explosives or offensive weapons; and (iii) offences of indecency involving young persons, must be considered prima facie unsuitable to be dealt with by way of a suspended sentence of imprisonment."

[28] More recently, in Deo v State [2005] FJCA 62; AAU0025.2005S (11 November 2005), the Court of Appeal in considering an appeal against custodial sentence imposed for breach of trust, said at paragraph 27:

"... Where the sentence imposed is of such a length that the court has power to consider suspending it, the sentencing judge must consider that option. However, that decision should only be made where there are special circumstances meriting such a sentence and, in all cases, the sentencing court should not be too quick to find such circumstances."

[29] Later, the Court said at paragraph 32:

"...., we emphasise that, without very unusual mitigating circumstances and even with the additional impact of unnecessary and inordinate delay of the type which has characterised the present case, suspended sentences in such cases must be regarded as exceptional and should rarely be ordered."

[30] The learned Magistrate's first reason for suspending the sentences was that the respondents had not re-offended in the past 7 years while awaiting trial on bail.

[31] Previous good character no doubt is a compelling mitigating factor to be taken into account when sentencing an offender. In the present case, only the third respondent was a first time offender. However, while awaiting trial on bail, all three respondents maintained a clean record. They deserved some credit for their clean records, but the fact that they did not re-offend while on bail was not so special to justify the suspension of sentence.

[32] The learned Magistrate's second reason for suspending the sentences was that the respondents did not use the weapons on the victim. This reasoning is misconceived. The fact that the weapons were not actually used on the victim did not make the robbery less serious. Weapons were used to threaten the victim. The threat was real and fortunately the victim did not resist. So these facts were not special to justify the suspension of sentence.

[33] The third reason the learned Magistrate considered was the post charge delay of 8 years. In the past, a lot has been said about the delays in Fiji courts. Judicial accountability demands the courts to implement procedures to prevent unnecessary delays and to hear cases expeditiously. Implementation of electronic case management system, tightening of bail conditions and a pro-active approach to the pre-trial conferences are some ways that the judicial officers can manage their cases. When these measures were implemented in the High Court, Criminal Division, stay applications on the ground of undue delay became a thing of the past. In fact, the High Court, Labasa, now hears trials within six months from the date of the alleged offence. Apart from re-trials, the High Court criminal cases in the Central and the Western Divisions are two years or less old.

[34] By no means, I am suggesting that the magistrates handling this case were responsible for the delay. Most of the time, adjournments are caused by the litigants or their counsel to avoid justice. No matter who causes the adjournments, the ultimate responsibility lies with the courts to dispense speedy justice.

[35] The cadre for magistrates in Fiji was recently increased from 28 to 35. More judicial trainings are now available to all the magistrates. It is now a matter for the magistrates, not only to build their reputation for efficient running of their courts, but also to gain the public's confidence in the administration of criminal justice.

[36] The age of the offence or any post charge delay, if applicable, is relevant when it comes to sentencing. In Sahim v the State Misc. Action No.17 of 2007, the Court of Appeal said at paragraph 29:

"...Where the issue is raised on appeal, and the appellant was fairly tried despite the delay, his or her remedy lies in the proportionate reduction of sentence or in the imposition of a non-custodial sentence."

[37] In Boolell v The State (Mauritius) [2006] UKPC 46 (16 October 2006), the accused was convicted of swindling and sentenced to 6 months imprisonment, after 12 years of post charge delay. By the time his appeal was heard by the Privy Council, the post charge delay was 15 years. The Privy Council found that although the delay in holding trial was unreasonable, the trial was fair and the conviction should stand. The Privy Council outlined the appropriate remedy for the accused person's breach of right to be tried within a reasonable time at paragraph 39:

"The Board must therefore determine the remedy which is to be afforded to the appellant. In the light of its finding that the trial was not unfair, the Board does not consider that the conviction should be set aside. On the other hand, their Lordships would not regard it as acceptable that the prison sentence imposed by the Intermediate Court should be put into operation some 15 years after the commission of the offence unless the public interest affirmatively required a custodial sentence, even at this stage. This is not such a case, and their Lordships will set aside the prison sentence and substitute for it a fine..."

[38] It is clear from the above passage that the suspension of sentence is not an automatic resort for unreasonable delay in holding trial. Regard must be made to the seriousness of the offence, the conduct of the accused in causing the delay and the length of the sentence imposed. Finally, the court must have regard to the public interest, that is, whether the public will lose confidence in the criminal justice system if suspended sentence is imposed for a violent offence. To maintain the public's confident in the criminal justice system, custodial sentence, except for most exceptional case, is inevitable for a violent offence.

[39] In the present case, the offence was indeed a violent offence. The seriousness of offence out-weighted the delay and mitigation offered by the respondents. The appropriate remedy for the delay in this case was a proportionate reduction in the sentence. In my judgment, the learned Magistrate's exercise of discretion to suspend the sentences was not a judiciously exercised discretion.

[40] There is a final point of concern. Although not expressly used as a reason to suspend the sentence, the learned Magistrate made references to the fact that the third respondent was a celebrity soccer player. In his sentencing remarks, the learned Magistrate praised the third respondent for winning the Inter-district tournament on 10 October 2011 and for missing all after win fan-fare, to attend the court the next day. The learned Magistrate said at paragraph 11:

"This behavior shows nothing but utmost respect for the court and in doing so you have challenged every accused person on their respecting bail conditions. You deserve leniency."

[41] What the learned Magistrate failed to comment was that on earlier occasions, the court tilted the balance towards the third respondent by relaxing his bail conditions to allow him to play in the national tournaments.

[42] In his sentencing remarks, the learned Magistrate said at paragraph 6:

"You promised not to re-offend as you are a contracted player for the champion Rewa team and was destined for an overseas sporting contract but was prevented to because of this case lingering in the courts. Your life revolves around soccer and a conviction will mean the end of this."

[43] Perhaps, the learned Magistrate's remarks were inadvertently made. But an ordinary informed person after listening to the learned Magistrate's sentencing remarks would perceive that leniency was shown to the offenders because of the celebrity status of the third respondent as a sportsman. All judges and magistrates must guard against such perception. The law is equal for everyone. Punishment must be given even handedly without any regard to the political, economical or social affiliations of the offender or the celebrity status of the offender.

[44] In State v Batiratu [2012] FJHC 864; HAR001.2012 (13 February 2012), Gates CJ said at paragraph 33:

".... Celebrity status may involve many facets. The person in question might be rich, famous, notorious, highly popular, a foreign dignitary, prominent in politics, an aristocrat or member of a royal household, or a star of film, television or the sporting world. It is essential that the courts treat such persons no differently from the ordinary person in the street. Before the law no more can be expected of them than from others. They do not come to the courts with a handicap nor with an edge on others. They are not to be penalised for their fame, nor given greater leniency for their importance and standing in the community..."

[45] In Batiratu, Gates CJ referred to the case of State v Viliame Cavubati Cr App. HAA080 of 2001S, in which Shameem J took a similar view at p.14;

"Further, the Respondent, who I was told is a well-known rugby player, ought to have remembered that in Fiji, rugby players are considered to be role-models particularly by the young and impressionable. I therefore do not consider that the fact that he is a well-known rugby player, to be a mitigating factor."

[46] When sentencing the third respondent, his celebrity status was irrelevant. The statement of the learned Magistrate that that the third respondent deserved leniency, immediately after highlighting his celebrity status, was unfortunate. The statement gives a perception of preferential treatment given to the respondent because of his celebrity status as a national sportsman.

Result
[47] For the reasons given, I revise the sentences imposed on the respondents and I sentence them afresh based on the facts and mitigation tendered in the Magistrates' Court.

[48] All respondents jointly committed the robbery. On an objective seriousness of the offence, I use 8 years as my starting point. Service stations provide essential services to the public at odd hours. It is therefore imperative that the punishment for a violent attack on a service station must reflect the damage that is done to the public if these businesses close because they feel unsafe to operate at odd hours. For the use of weapons and gang attack on a vulnerable victim manning a service station, I increase the sentence to 12 years imprisonment. I have borne in mind that all three respondents spent a short period in custody on remand.

[49] The first and the second respondents are not first time offenders but they have been in good behavior for the last 8 years. The third respondent is a first time offender and therefore I give more weight to his previous good character than others. I take into account the guilty pleas, personal circumstances of each respondent, recovery of stolen items, payment of restitution and delay as further mitigating factors.

[50] I reduce the first and the second respondents' sentences by 8 years and the third respondent's sentence by 8½ years.

[51] I sentence the first and the second respondents to 4 years' imprisonment.

[52] I sentence the third respondent to 3½ years' imprisonment.

[53] The reason the sentences are below the tariff is because I have given substantial weight to the delay in this case. Further, I decline to set a non-parole period due to the delay.

Daniel Goundar
JUDGE

At Suva
31 May 2012

Solicitors:
Office of the Director of Public Prosecutions for State
Office of the Director of Legal Aid Commission for all Respondents