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Qurai v State [2017] FJHC 225; HAA030.2016 (17 March 2017)

IN THE HIGH COURT OF FIJI AT SUVA

In the matter of an appeal under section 246(1)

of the Criminal Procedure Decree 2009.


SOLOMONI QURAI

Appellant
CASE NO: HAA. 030 of 2016
[MC Suva, Crim. Case No. 1339 of 2012]


Vs.


STATE
Respondent


Counsel : Ms. S. Ratu for Applicant.
Mr. S. Vodokisolomone for Respondent.

Date of Judgment : 17th March 2017.


JUDGMENT


  1. The appellant and another were charged with the offence of damaging property contrary to section 369 of the Crimes Decree 2009 before the Magistrate’s Court at Suva. Both pleaded guilty to the charge and on 30th July 2013, they were each sentenced to an imprisonment term of 6 months.
  2. The learned Magistrate had noted that the offence was committed in the process of escaping from prison and therefore in view of the provisions of section 22(4) of the Sentencing and Penalties Decree 2009 (“the Decree”) had ordered that the appellant and the other accused should serve their respective sentences consecutively on the uncompleted term of imprisonment they were already serving.
  3. Notice was filed by the appellant to appeal against the said sentence about 2 years and 2 months after the expiry of the appealable period. On 29th July 2016, this court enlarged the period of limitation prescribed by section 248(1) of the Criminal Procedure Decree in order for the appellant to appeal against the sentence.
  4. The appellant challenges the sentence imposed by the learned Magistrate on the following grounds;
    1. The learned Magistrate erred in law when he imposed a sentence to run consecutive to the current term of imprisonment when the Appellant was serving a term of life imprisonment therefore rendering the sentence invalid.
    2. The sentence is harsh and excessive.
  5. In the case of Kim Nam Bae v The State [AAU0015 of 1998S (26 February 1999)] the court of appeal recounted the factors to be considered in deciding whether a sentence imposed in the court below should be disturbed in an appeal against sentence. The court said;

“It is well established law that before this Court can disturb the sentence, the appellant must demonstrate that the Court below fell into error in exercising its sentencing discretion. If the trial Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if mistakes the facts, if he does not take into account some relevant consideration, then the Appellate Court may impose a different sentence. This error may be apparent from the reasons for sentence or it may be inferred from the length of the sentence itself (House v The King (1936) 55 CLR 499).”


  1. Therefore, in order for this court to interfere with the impugned sentence, the appellant should satisfy that the learned Magistrate;
    1. acted upon a wrong principle;
    2. allowed extraneous or irrelevant matters to guide or affect him;
    1. mistook the facts; or
    1. did not take into account some relevant consideration.
  2. On the first ground of appeal the appellant argues that the sentence imposed by the learned Magistrate that was ordered to be served consecutive on the appellant’s uncompleted sentence of imprisonment is invalid for the reason that the sentence the appellant was serving was life imprisonment. The respondent concedes that this ground has merit.
  3. On the second ground the appellant submits that the sentence is harsh and excessive for the reason that it was made consecutive to the existing life imprisonment.
  4. What is challenged on both grounds is the learned Magistrate’s order that the sentence should run consecutive to the uncompleted sentence. This order is made pursuant to the provisions of section 22(4) of the Sentencing and Penalties Decree 2009. The section reads thus;

“Every term of imprisonment imposed on a prisoner by a court in respect of a prison offence or an escape offence must, unless otherwise directed by the court based on exceptional circumstances, be served consecutively on any uncompleted sentence of imprisonment.”


  1. The default position created under section 22(4) of the Decree is that the sentence imposed on a prisoner for a prison offence or an escape offence must be made consecutive on any uncompleted sentence the prisoner is already serving. The sentencing court has the power to disapply the said default position based on exceptional circumstances.
  2. In terms of section 22(4) attributed to above, the term of imprisonment imposed on a prisoner for committing a prison offence or an escape offence must ‘be served consecutively on any uncompleted sentence of imprisonment’ unless the court directs otherwise based on exceptional circumstances. Due to the use of the term ‘any uncompleted sentence’ in this section, in my view, it would not be wrong in law for a sentencing court to order the sentence imposed on a prison or an escape offence to run consecutive to any uncompleted sentence including a life sentence though it is technically impossible to serve a sentence consecutive to a life imprisonment.
  3. Though both parties submitted before this court that the appellant was serving a life sentence at the time he was sentenced by the learned Magistrate, the magistrate court record does not indicate that the learned Magistrate was informed by the counsel for the appellant or the counsel for the respondent at any stage that the appellant was serving a life sentence. In fact, the previous conviction report of the appellant filed before the learned Magistrate does not indicate that the appellant is serving a life sentence.
  4. According to the copy of the sentence submitted by the counsel for the respondent who appeared on 03rd March 2017, the appellant had been sentenced to life imprisonment without a minimum term for the offence of murder on 12th March 2007.
  5. It should be noted at the outset that the appellant’s claim that the learned Magistrate had a duty to make an inquiry whether the appellant was serving a life sentence has no merit because there is a previous conviction report of the appellant issued on 08/10/12 in the court record which does not indicate that the appellant was serving a life sentence probably due to an oversight of those who are responsible in preparing the said report.
  6. It is pertinent to note that the appellant in this case is challenging the decision of the learned Magistrate based on a fact which was not within the knowledge of the Magistrate at the time he made the decision. Therefore, it begs the question whether this appeal can be maintained under section 246(1) of the Criminal Procedure Decree and in view of the judgment in Kim Nam Bae (supra) as the appellant cannot for the aforementioned reason argue that the learned Magistrate erred when he made his decision. However, since there was no objection raised in that regard and considering the fact that the respondent has taken up the position that the sentence should be corrected, in the interest of justice, I will proceed with this appeal ignoring that issue.
  7. The appellant argues that the sentence imposed on the appellant is ‘unrealistic’ for the reason that the sentence is deemed to commence on the death of the appellant and therefore the fact that the appellant’s uncompleted sentence is life imprisonment should be regarded as an exceptional circumstance to disapply the default position under section 22(4) of the Decree.
  8. I appreciate the merits in the argument that a sentence made to run consecutive to a life imprisonment is technically impossible to serve as it cannot operate until the prisoner dies. What I cannot agree with is the contention that the sentencing courts should as a rule, order sentences to run concurrently when sentencing the prisoners who commit prison offences or escape offences while serving life imprisonment due to the aforementioned reason. In my judgment, imposing concurrent sentences cannot be regarded as the alternative due to the technical impossibility of serving a cumulative sentence over life sentence when it comes to prisoners who commit prison or escape offences while serving life imprisonment. Such a course of action defeats the purpose of section 22(4) of the Sentencing and Penalties Decree.
  9. Establishing a rule that the default position under section 22(4) of the Decree should not be applied to prisoners who serve life sentences would also lead to disparity in sentencing.
  10. Take for example this same case. The appellant was charged with another for the same offence and were given the same sentence. If the sentence of six months imposed on the appellant was made concurrent in view of the fact that he was serving a life imprisonment at the time of sentencing which was on 30th July 2013, the appellant would have served his sentence for the prison offence by January 2014. However, his co-accused who had committed the same offence under the same circumstances should serve the sentence of six months consecutive to his uncompleted sentence because he was not serving a life imprisonment. I note that the co-accused was serving an 8 years imprisonment term since 27/01/2009 which is the longest imprisonment term according to his previous convictions report filed before the magistrate court and there are other short term sentences that were made consecutive. If it is assumed that the co-accused’s uncompleted sentence of imprisonment was to be completed on 31st January 2017, the co-accused is yet to serve the full sentence which was imposed on him by the learned Magistrate on 30th July 2013 for the prison offence. Whereas, the appellant would have completed his sentence for the same prison offence about three years ago had his sentence been made concurrent.
  11. In Chand v State [2016] FJCA 65; AAU0063.2012 the court of appeal succinctly laid down the concerns raised by Hammond J on the same issue in the case of R v McElroy [1993] 3 NZLR 192 as follows;

“[30] Hammond J. in R v McElroy [1993] 3 NZLR 192 where the trial judge considered the option of imposing sentences for sexual violation, arson and manslaughter cumulative upon the mandatory life sentence for murder, followed R v Foy (supra) and R v Haunui and Greening [1992] 8 CRNZ and held that there was no power for a Court to impose cumulative sentences on a sentence for life imprisonment for murder and to do otherwise would be a logical impossibility.


[31] However, Hammond J. went onto point out an anomalous situation that could arise from this legal position by the following example

“Assume X rapes Y on 1 January 1993 and (having pleaded guilty) is sentenced on 1 March 1993 to seven years’ imprisonment. Whilst in prison, on 1 May 1993 he kills a prison officer. As the law presently stands, this prisoner could be sentenced to life imprisonment cumulative on the rape sentence. The inexorable logic of Parker LCJ would not apply in this case.

It is a fundamental principle of justice that it should be even handed. Like cases should be treated alike. Why then, if prisoner X kills a policeman and is sentenced to life imprisonment; and then subsequently rapes a female prison officer whilst in prison or escapes and rapes some other women, should the result be different?”


[32] Hammond J. also went on to record the problem of escaping prisoners who have been sentenced to life imprisonments who commit further crimes whilst at large knowing that the law cannot impose further finite sentences on them and may act dangerously with regard to the members of the public.


[33] The third issue raised by Hammond J. concerns a prisoner who is sentenced to life imprisonment, hurling abuse at the court and all connected with it and the court cannot even pass a cumulative sentence of contempt to maintain the integrity of its own processes. The Learned Judge then suggests that at present what happens to such offenders is simply a matter for the Parole Board.”


  1. In the light of the above factors, I am inclined to form the view that, disapplying the default position under section 22(4) of the Decree leads to more adverse repercussions compared to the alleged technical impossibility of giving effect to the sentence imposed by applying the said default position. The appellant relies on the case of John Patrick Foy (1962) Cr. Appeal Rep. 290 where it was held that a sentence made consecutive to life is no sentence at all. However, it can also be argued that from the point of view of the prisoners who serve life imprisonment and of the general public, a sentence made concurrent to a life sentence is also no sentence at all.
  2. Now let us look closely at the claim that the serving of a life imprisonment should be regarded as an exceptional circumstance not to make a subsequent sentence consecutive on the said uncompleted life sentence. The argument against imposing a cumulative sentence on a life imprisonment is developed on the premise that a life sentence is served until the death of the prisoner.
  3. It is pertinent to note that, even the prisoners who are sentenced to mandatory life imprisonment can seek pardon under section 119 of the 2013 Constitution. Therefore, when a prisoner is sentenced for mandatory life imprisonment it does not necessarily mean that that prisoner is incarcerated until his/her death. In the event an accused is sentenced to life imprisonment which is not mandatory life, then the sentencing court should fix a non-parole period in terms of section 18 of the Sentencing and Penalties Decree (see Balekivuya v S/i> [2016] FJCA 16; 16; AAU0081.2011 (26 February 2016)).
  4. The granting of pardon or being released on parole as the case may be would end the incarceration of a prisoner who is imprisoned on a life sentence whether mandatory or otherwise, in which case that prisoner does not have to die in prison to complete his/her life sentence.
  5. Therefore, there are avenues available in the justice system for prisoners who are sentenced to life whether mandatory or otherwise where the incarceration on the said (life) sentence is brought to an end without the prisoner having to die in prison. Accordingly, it appears that the claim that the serving of a life sentence should be considered as an exceptional circumstance not to impose a sentence consecutive on that life sentence is based on a possibility and/or a theory as opposed to a certainty.
  6. It was obvious that this appeal was not preferred because the appellant was genuinely concerned about the impossibility of serving the sentence imposed by the learned Magistrate. The appellant informed this court on 30th November 2016 upon inquiry that the reason he filed this appeal was because he is unable to apply for pardon as a result of the impugned sentence. Therefore, it is clear that the appellant had filed this appeal on the conviction that he does not have to be incarcerated until his demise in order for him to complete his life sentence.
  7. All in all, I am not convinced that the sentencing courts should opt to disapply the default position provided under section 22(4) of the Decree in respect of the prisoners who commit prison or escape offences simply because of the fact that the uncompleted sentence is life imprisonment. A sentence made to run consecutive on a life sentence under the provisions of section 22(4) of the Decree cannot be regarded as invalid considering the language used in the said section.
  8. The respondent relies on the case of Chand v State (supra) to support the contention that it is wrong to impose a cumulative sentence on a life sentence.
  9. In the aforementioned case the learned High Court Judge had imposed a sentence of 5 years imprisonment to run consecutive on the life sentence Mr. Chand was serving. The offences for which he was sentenced were, causing a disturbance in the course of a judicial proceeding contrary to section 194(1)(g) of the Crimes Decree and act with intent to cause grievous harm contrary to section 255(b) of the Crimes Decree. It is pertinent to note that these offences does not come under any special category under the Sentencing and Penalties Decree and therefore in terms of section 22(1) of the Decree the default position is that the sentence imposed on such offences should be made concurrent to the uncompleted sentence or sentences of imprisonment the person is serving.
  10. The learned High Court Judge in that case decided not to apply the said default position and to make the sentence consecutive on the uncompleted sentence considering the fact that Mr. Chand threw a stone at a judicial officer during court proceedings as an exceptional circumstance.
  11. In Chand’s case (supra) at paragraph 28 the Court of Appeal had observed that the Sentencing and Penalties Decree is silent regarding the situation the court had to deal with in that case. Having considered the concerns raised by Hammond J. in R v McElroy [1993] 3 NZLR 192 due to the lack of jurisdiction to impose cumulative sentences on a sentence of life imprisonment in deserving cases, Prematilake J said at paragraph 34 that;

“In my view, all three matters raised by Hammond J carry a considerable weight and perhaps deserve the attention of the executive and the legislature. Giving the court power to impose cumulative sentences or to subsequently extend the minimum term to be served before pardon may be considered, in case the prisoner serving a life imprisonment is subsequently found guilty and sentenced for a different offence or offences are perhaps, some areas to be looked at.”


  1. Coming back to the case at hand, the appellant does not dispute that the offence he was sentenced for by the learned Magistrate is a prison offence. Therefore, unlike in Chand’s case, the default position applicable in the instant case is that the sentence should be made consecutive to the uncompleted sentence of imprisonment in terms of the provisions of section 22(4) of the Decree.
  2. This case can be further distinguished from Chand’s case (supra) because the law applicable in this case is not silent on the issue to be dealt with. The language used in section 22(4) of the Decree allows a sentence to be made consecutive to any uncompleted sentence of imprisonment including a life sentence.
  3. With regard to the appellant’s concerns on applying for pardon, I wish to state that, in my judgment, the impugned sentence imposed by the learned Magistrate is not an impediment for the appellant to petition the Mercy Commission under section 119 of the Constitution seeking a pardon in respect of the life sentence imposed on him. As His Lordship Calanchini P. emphasized in the case of Balekivuya (supra) “”
  4. In my view, in the event the appellant receives pardon in respect of his life imprisonment, the sentence imposed on the appellant by the learned Magistrate for the prison offence should be given effect from the date he is to be released based on that pardon, unless he receives pardon in relation to the said prison offence as well. This is perhaps another area for the executive and the legislature to consider in addition to what His Lordship Prematilaka J. suggested at paragraph 34 of the judgment in the case of Chand (supra).
  5. In the circumstances, I find that the learned Magistrate had not erred in law or in principle by ordering the sentence of six months imprisonment imposed on the prison offence committed by the appellant to run consecutively on the uncompleted sentence of imprisonment for the reason that the uncompleted sentence was life imprisonment. The sentence imposed by the learned Magistrate is not harsh and excessive for the reason that it was made consecutive on the life sentence because the relevant order was made as required by law.
  6. Appeal dismissed.

Vinsent S. Perera
JUDGE


Solicitor for the Applicant : Legal Aid Commission, Suva

Solicitor for the State : Office of the Director of Public Prosecution, Suva.

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