Rokini v State [2013] FJHC 680; HAA16-19.2013 (12 December 2013)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 16-19 OF 2013

BETWEEN:

VILIAME ROKINI
Appellant

AND:

THE STATE
Respondent

Counsel: Mr. R. Tagivakatini for Appellant
Mr. S. Vodokisolomone for State

Date of Hearing: 9 December 2013
Date of Judgment: 12 December 2013

JUDGMENT

[1] This is an appeal against sentence. The appellant appeared in the Magistrates' Court and pleaded guilty to numerous offences. He was sentenced as follows:

Case No. 113/13

Burglary - 3 years' imprisonment

Theft - 3 years' imprisonment

Case No. 298/10

Burglary - 3 years' imprisonment

Theft - 3 years' imprisonment

Case No. 271/10

Burglary - 3 years' imprisonment

Theft - 3 years' imprisonment

Case No. 208/09

Robbery with violence - 7 years' imprisonment

[2] In all three cases of burglary and theft, the individual sentences were made concurrent. Thus, in each case the total sentence for burglary and theft was 3 years' imprisonment. However, the sentence in Case No. 271 was made consecutive with the sentences in Case No. 113/13 and Case No. 298/10. In effect the appellant was sentenced to 6 years' imprisonment for three separate burglary and theft. The 6 years was further made consecutive with the 7 years for robbery with violence. The term arrived at was 13 years, but since the appellant had been in custody on remand for 1 year, the total was reduced to 12 years' imprisonment.

[3] The grounds of appeal in substance are:

(i) Error in not giving any weight to the guilty pleas.
(ii) Error in the application of the totality principle.
(iii) Double punishment.

Guilty pleas

[4] Section 4(2)(f) of the Sentencing and Penalties Decree provides that the court must have regard to an offender's guilty plea in sentencing. This section has incorporated the long standing practice of the courts to reduce a sentence where the accused has pleaded guilty. The reasons for this practice were highlighted by the Court of Appeal in Navuniani Koroi v. The State Criminal Appeal No. AAU0037 of 2002S as follows:

"In most cases that is a recognition of his contrition as expressed by an early admission and the fact that it will save the witnesses and the court a great deal of time and expense."

[5] In Daunabuna v State [2009] FJCA 23; AAU0120.2007 (4 December 2009), the Court of Appeal highlighted the considerations that went to the weight of a guilty plea at [16]:

"The weight to be given to a guilty plea depends on a number of factors. Some of these factors were identified by Hunt CJ at CL in R v. Winchester (1992) 58 A Crim R 345 at 350:

"A plea of guilty is always a matter which must be taken into account when imposing sentence. The degree of leniency to be afforded will depend upon many different factors. The plea may in some cases be an indication of contrition, or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the prisoner has pleaded guilty. The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from the recognition of the inevitable: Shannon (1979) 21 SASR 442 at 452; Ellis (1986) 6 NSWLR 603 at 604. The plea of guilty may also be taken into account as a factor in its own right independently of such contrition, as mitigation for the co-operation in saving the time and cost involved in a trial. Obviously enough, the extent to which leniency will be afforded upon this ground will depend to a large degree upon just when the plea of guilty was entered or indicated (and thus the savings effected): Beavan (unreported, Court of Criminal Appeal, NSW, Hunt, Badgery-Parker and Abadee JJ, 22 August 1991), at p.12.

The important point to be made is that leniency is afforded upon the second ground as a result of purely utilitarian considerations, as with the 'discount' allowed for assistance given to the authorities: Cartwright (1989) 17 NSWLR 243; Gallagher (1991) 23 NSWLR 220; 53 A Crim R 248. The leniency is afforded in order to encourage early pleas of guilty so that the criminal list is more expeditiously disposed of and so that other cases, in which there is a genuine issue to be determined, will be brought on for hearing without delay.

Encouragement will be given to early pleas of guilty only if they lead (and are seen to lead) to a substantial reduction in the sentence imposed. That does not mean that the sentencing judge should show a precisely quantified or quantifiable period or percentage as having been allowed. Indeed, it is better that it not be shown; that was the point of this Court's decision in Beavan at pp14-15. As was said in that case – discounts for assistance given to the authorities to one side – it is both unnecessary and often unwise for the judge to identify the sentence which he or she regards as appropriate to the particular case without reference to one factor and then to identify the allowance made which is thought to be appropriate to that particular factor."

[6] In sentencing the appellant, the learned Magistrate dealt with the guilty plea by saying:

"I do not make any deduction for a change of plea for it was made to merely escape a prison sentence."

[7] Counsel for the appellant submits that the learned Magistrate's conclusion that the appellant changed his plea to guilty to escape a prison sentence is erroneous. He submits that prison sentence was inevitable given the spate of offences committed by the appellant. Counsel submits that while the appellant's guilty pleas were made late, he nevertheless saved the court time and resources by not pressing for trials. I am persuaded to accept these submissions. The learned Magistrate clearly made an error of principle by not giving any discount for the appellant's guilty pleas based on the utilitarian considerations in accordance with Daunabuna's case. This ground succeeds.

Totality principle

[8] The Supreme Court in Joji Waqasaqa v The State Cr. App. No. CAV0009.05S (8 June 2006) summed up the totality principle at [34] in the following terms:

"...the sentencing judge or magistrate is always required to consider the totality of the aggregate sentence in order to ensure that it is just and appropriate. Sentencing is never a mere matter of arithmetic. The court must always step back and take a last look at the total just to see if it looks wrong ...."

[9] The rationale for the totality principle was explained by the Court of Appeal in Philip Fong Toy v The State AAU0099/08 at [12]:

"The effect of the totality principle is to require a sentencer when ordering a series of sentences to run consecutively to consider whether the total sentence is too much and will have a crushing effect on the offender. If a sentence concludes that making a series of sentences cumulative will have a crushing effect on the offender, then the sentences should be made concurrent. That is how the totality principle operates."

[10] Ultimately, the final sentence arrived at for multiplicity of offences should reflect the total criminality involved (Vulawalu v State [2011] FJSC 6; CAV0006.2010 (8 April 2011)). In sentencing the appellant, the learned Magistrate expressly considered the totality principle by making some sentences concurrent and some consecutive. The oldest offence was the robbery with violence. The appellant committed the robbery on 28 August 2009. He was charged with the robbery and arraigned on 1 September 2009. On the same day, the appellant was released on bail. On 11 September 2010, the appellant burgled and stole personal items belonging to a guest staying at the Hidden Paradise Guest House in Savusavu. On 30 September 2010, the appellant burgled a dwelling residence and stole a mobile phone. On 23 March 2013, the appellant broke into a businessman's residence and stole his mobile phone.

[11] There cannot be any legitimate complaint arising from the burglary and theft sentences being made consecutive to the sentence for robbery with violence. The subsequent offences were committed while the appellant was on bail for the robbery with violence charge. Section 22(1)(e) of the Sentencing and Penalties Decree provides for a consecutive sentence for an offence committed while the accused was on bail. This provision is consistent with the practice of the courts to impose a consecutive sentence for an offence committed while the accused was on bail. As was said by Supreme Court in Waqasaqa at [33]:

"In a case like the present, where the later offence is committed while the prisoner was on bail awaiting trial for the earlier offence, a substantial concurrency of sentences for the two separate escapades would only encourage the prisoner on bail to make (criminal) hay while the sun shines. Sentencing practice in Australia, England and New Zealand reflects these principles by generally imposing consecutive rather than concurrent sentence in these situations (see: R v Richards [1981] 2 NSUL R 464; and R v Kain (1985) 28 SASR 309; Archbold 2006 s 5-63, R v Walace [1983] NZLR 758)."

[12] The reason the sentence in Case 271/10 was made consecutive with the other sentences was that in Case 271/10 the victim was a tourist. Counsel for the State has referred to the case of State v Pauliasi Yasa Criminal Case No. HAC44 of 2012. In that case, an overseas couple who were holidaying in Fiji were attacked, robbed and raped in the resort they were staying. In sentencing the offender, the trial judge took into account the following considerations at [14]-[15]:

"There can be no greater aggravation to these crimes than the fact that the victims were tourists to this country. Tourists on holiday in a country that is touted world-wide as the ultimate friendly experience, should have the reasonable expectation of safety within their hotel or guesthouse rooms. Anything less than that expectation would be devastating to what is now Fiji's major source of foreign income.

As a result the Courts will visit offenders against tourists with very severe sentences indeed and the message to would-be offenders is that there is zero tolerance of such crime."

[13] Counsel for the State argued that in the present case, the learned Magistrate considered the theft from a tourist more serious than the other burglary cases based on Yasa's case. Yasa's case is not consistent with Naidu v State [2007] FJCA 4; AAU0056.2005S (9 March 2007). In Naidu, a taxi driver was convicted of rape of a tourist who was a passenger. The trial judge in sentencing the offender highlighted the following as an aggravating factor:

"You abused your position in the extreme. This country is very dependent upon the tourist industry and conduct such as yours does little to encourage young people to visit this country. It discourages people from doing so. It detracts from the friendly nature that is portrayed overseas of the population of this country. You have betrayed not just yourself, not just your family but the population of your country by your conduct."

[14] In Naidu, the Court of Appeal held that the trial judge placed an incorrect emphasis on the effect of the appellant's offence on the tourist industry. In my judgment, the learned Magistrate made the same error in this case. The appellant in effect received three additional years of imprisonment for stealing from a tourist. In other words, if the victim was not a tourist, then the sentence would have been concurrent and three years less. This Court cannot see any justification for discriminating against victims on the ground of their residential status. The individual impact of the crime is same, regardless of whether the victim is a tourist or a local. For instance, the trauma suffered by rape victims, whether she is a tourist or a local will be the same for both victims. The local victims feel the same impact that the tourist feels when violated. The proper approach to the burglary and theft sentences was to ask whether making the sentences consecutive notwithstanding the victim's residential status would have reflected the total criminality involved. Since this was not the approach adopted by the learned Magistrate, the consecutive order in relation to the burglary and theft sentences cannot stand. This ground of appeal succeeds.

Double punishment
[15] The contention under this ground is that the same aggravating factors were used to increase the individual sentences for burglary and theft in each of the three cases. While I accept that the same aggravating factors were used by the learned Magistrate in the burglary and theft cases, I am not convinced that the appellant was punishment twice based on the same facts. The individual sentence for burglary in each case was made concurrent with the individual sentence for theft. In effect, the appellant received one punishment for both burglary and theft in each case. This ground fails.

Result
[16] Since the appellant has succeeded with two of his grounds of appeal, some reduction in the total sentence is justified bearing in mind that the appellant has spent 1 year in custody while on remand.

[17] The sentences are altered as follows:

Case No. 113/13

Burglary - 3 years' imprisonment

Theft - 3 years' imprisonment

Case No. 298/10

Burglary - 3 years' imprisonment

Theft - 3 years' imprisonment

Case No. 271/10

Burglary - 3 years' imprisonment

Theft - 3 years' imprisonment

Case No. 208/09

Robbery with violence – 5 years' imprisonment

[17] Sentences imposed on 113/13, 298/10 and 271/10 to run concurrently with each other, but consecutively with 208/09 from 4 September 2013. The total sentence now is 8 years' imprisonment for the spate of offences committed by the appellant over a period of four years. In my judgment, the term of 8 years' imprisonment fairly reflects the total criminality involved. Due to the age of the offences, I decline to fix a non-parole period. The appeal against sentence succeeds to this extent.

Daniel Goundar
JUDGE

At Labasa
12 December 2013

Solicitors:
Legal Aid Commission, Labasa for Appellant
Office of the Director of Prosecutions, Labasa for State