Tabaka v State [2022] FJHC 35; HAA72.2020 (8 February 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO. HAA 72 OF 2020

BETWEEN:
JONE TABAKA
APPELLANT

A N D:
THE STATE
RESPONDENT

Counsel: Ms. K. Vulimainadave for Appellant
Ms. L. Latu for Respondent

Date of Hearing: 26^th November 2021

Date of Judgment: 08^th February 2022

J U D G M E N T

1. The Appellant had been charged in the Magistrate’s Court of Rakiraki with one count of Theft, contrary to Section 291 (1) of the Crimes Act and one count of Breach of Suspended Sentence, contrary to Section 28 (1) of the Sentencing and Penalties Act. On the 31st of October 2018, the Appellant pleaded not guilty to both counts; hence, the matter proceeded to the hearing. Subsequent to several adjournments, the Appellant had changed his position and pleaded guilty to both counts on the 21st of November 2019. Once again, the matter had adjourned on several occasions due to various reasons. On the 19th of November 2020, the learned Magistrate sentenced the Appellant to a period of two years and ten months imprisonment for the offence of Theft. Having considered the five months period that the Appellant had already served, the actual sentence that the Appellant has to serve is two years and five months imprisonment. The learned Magistrate had further ordered that the above sentence be served consecutive to the prison term that the Appellant is presently serving. Moreover, the learned Magistrate had disregarded the plea of guilty entered by the Appellant regarding the second count. Aggrieved with the above sentence, the Appellant appealed to the High Court on the following grounds, inter alia;
   
   1. The learned trial Magistrate erred in la principle when incorrectly applying the totality principle,
   2. The sentence of the learned Magistrate was harsh and excessive in all circumstances of the case.
2. The parties were directed to file their written submissions, which they filed as per the directions. Having carefully perused the record of the proceedings in the Magistrate’s Court and the respective written submissions of the parties, I now proceed to pronounce the judgment as follows.
   
3. For the purpose of convenience, I shall take both grounds of appeal together into consideration.
   
In an appeal against the sentence, the Appellate Court will examine whether thtencing Magistrate had fallen into error in exercising his/ his/her sentencing discretion. In doing that, the Appellate Court would take into consideration the following factors, that:

1. Whether the sentencing Judge acted upon a wrong principle;
2. Whether the sentencing Judge allowed extraneous or irrelevant matters to guide or affect him;
3. Whether the sentencing Judge mistook the facts;
4. Whether the sentencing Judge failed to take into account some relevant consideration.
   
5. The errors in sentencing discretion may be apparent either from the reasons given in the sentence or making inferences from the length of the sentence. (vide; Saqainaivalu v State [2015] FJCA 168; AAU0093.2010 (3 December 2015). In doing that, the Appellate Court will determine whether the sentence given by the lower Court is within the permissible range. Even if there has been an error in exercising the sentencing discretion, the Appellate Court will still dismiss the appeal if the Appellate Court considers the sentence given by the lower Court comes within the permissible sentencing range. (vide; Sharma v State [2015] F7CA 178; AAU48.2011 (3 December 2015)
   
6. The Appellant had been charged with one count of Theft on the allegation that he had stolen a motor vehicle registration number LR 3159 that belonged to Iguana Rentals on the 5th of January 2018. The value of the said vehicle was $50,000. Having stolen the vehicle, the Appellant had abandoned the said vehicle after he met an accident, causing damages to the vehicle. During the sentencing hearing, it was revealed that the vehicle had been written off due to the damages caused by the said accident.
   
7. Having correctly considered the applicable tariff as outlined in Ratusili v State [2012] FJHC 1249; HAA011.2012ugust 2012), the lehe learned Magistrate had selected eighteen months as the starting point. The learned Magistrate had merely stated that he selected eighteen months based on the objective seriousness of the offence. He had then considered the value of the stolen car and the loss caused by accident as aggravating factors. The learned Magistrate had added two years for the aggravating factors. He had given sixteen days of discount for the mitigating factors and seven months for the plea of guilty, reaching the final sentence of two years and ten months.
   
According to the tariff guidelines expounded in Ratusili (supra), the sentencing range for the fiffence of simple theft is b is between two months to nine months. Any subsequent offending sentence should be at least nine months. If the offence involves a large sum of money or breach of trust, the sentence should go up to three years.

9. The learned Magistrate had selected eighteen mont the starting point, which indicates that he had not considered this offence a simple thefttheft. The learned Magistrate had not given any reasons or factors that he had taken into consideration for the objective seriousness of the offence. This crime is not an offence of breach of trust. Hence, it appears that the learned Magistrate had considered the amount involved in this offence in selecting the appropriate tariff range. The learned Magistrate had again considered the value of the vehicle as an aggravating factor in order to increase the sentence by two years. Accordingly, the learned Magistrate had considered the value of the vehicle in determining the starting point and then increasing the sentence by two years, thus falling into the error of double counting.
   
10. In view of the above reasons, I find the learned Magistrate had exercised his sentencing discretion on a wrong principle.
    
11. The next contention of the Appellant is that the learned trate had erred in law and principle in misapplying the totality principle.
    
12. The learned Magistrate had ordered the sentence to be served consecutive to tison term that the Appellant is presently serving in relatielation to Magistrate’s Court Criminal Case CF 145/17. The learned Magistrate had considered the totality principle and one transaction rule to make the sentence consecutive to the present prison term. According to the Sentence, it appears that the Appellant has to serve three years and one month of his previous sentence before he commences the sentence of this matter.
    
Section 22 (1) of the Sentencing and Penalties Act states that:

“Subject to stion (2), every term of impf imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of imprisonment.”

14. The Supreme Court of Fiji in Vaqewa v State [2016] FJSC 12; CAV0016.2015 (22 April 2016) states that:
    

“the proper construction of these provisions is as follows. The default position is that any term of imprisonment passed on someone by a court has to be served concurrently with any sentence of imprisonment he is currently serving. There are two situations in which the default position must or may be disapplied. It must be disapplied in any of the five circumstances set out in section 22(2). That is the effect of the opening words of section 22(1) – “Subject to sub-section (2) ...” – and the opening words of section 22(2) – “Sub-section (1) does not apply ...” In addition, though, even in a case which does not come within any of the five circumstances set out in section 22(2), the default position may be disapplied. That is the effect of the words “unless otherwise directed by the Court” in section 22(1).”

15. Accordingly, the default position is the concurrent sentence unless the Appellant falls within the purview of subsection 2 or the sentencing Court had ordered it otherwise. Gates CJ in Vaqewa v State (supra) has discussed the application of “unless otherwise directed by the Court” where His Lordship found that:
    

“In deciding to direct otherwise from the purport of that section, a court ought to state its reasons for doing so. That at least would be the best practice approach, if not a requirement under the section.”

16. Expressing the same sentiment, Keith JA in Vaqewa v State (supra) has stated that the highly desirable practice is to provide reasons, and the Supreme Court of Fiji expects that Magistrates will do so in future cases. Keith JA held that:
    

“As the Chief Justice noted in para 30 of his judgment, the magistrate did not give any reasons for doing that. I agree with the Chief Justice that there was no legquirement on him to do that, but best practice makes the gihe giving of reasons highly desirable, and I hope that magistrates will do so in every case.”

17. In this matter, the learned Magistrate had merely stated that he had considered the totality principle and one transaction rule to deviate from the default position of the concurrent sentence.
    
18. The Supreme Court of Fiji in Dakuidreketi v Fiji Independent Commission Against Corruption (FICAC) [2018] FJSC 4; CAV0014.2017 (26 April 2018) has discussed the totality principle and the one transaction rule. Marsoof JA held that:
    

“The learned judge has given consideration to the theories involved in the imposition of consecutiveences as s as stated by Pathik V in Visa Waga v The State [2003] FJHC 138 (23 September 2003) that,20;The power to order sentesentences to run concurrently is subject to two major limiting principles, which may be called the “one transaction rule” and the “totality principle” (Thomas; Principles of Sentencing 2nd Ed pg. 53). It does not mean that consecutive sces cann cannot be imposed, so long as the overall sentence is not unduly harsh and by the same token the outcome of the concurrent sentences are not rendered unduly lenient in view of the aggravating features (Regina v Joh The Times 22 May 1995).

The totality principle basically means that when a court passes a sentence with a number of consecutive sentenct shouldhould review the aggregate or the totality of the sentences and consider whether the “total” is just appropriate when considering the “offences” as a whole. As Jiten Singh J said in Namma v The State [2002] FHHC 171 (6 September 2002), the application of this principle does not mean that there is judicial conduct offering for “multiple offending” or encourages offenders to continue offending, after a serious crime, with the impression that there is little to lose. It must always be made clear that the more the number of crimes and the more the gravity of those crimes, the longer the sentence is to be recorded.

The totality principle is that consecutive nces shoulshould not be such as to result in an aggregate term wholly out of proportion to the gravity of the offences view a whole (R v Bradley [1979] NZCA 33; (1979) 2 NZLR 262 at 263). When a Judge is faced with the task of senf sentencing for multiple offences, as an initial step he is required to identify the appropriate sentence for each offence and then as the final step, to achieve a total sentence appropriate to the overall culpability of the accused (HKSAR v Ngai Yiu Ching [2011] 5 HLRD 690, par 13).

Where multiple offences are committed, the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence, while at the same time resulting in a total sentence which, so far as possible, accurately reflects the totality of criminality comprised of the totality of offences. This exercise involves a significant measure of discretion and accumulation of individual sentences according to the particular circumstances of each case (Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656, para 64)).

19. Since there is no reasons given by the learned Magistrate in the sentence, this Court is not in a position to properly consider whether the learned Magistrate had applied the “totality principle” and the “one transaction rule” accurately.
    
20. Taking into consideration the above-discussed reasons, it is my opinion that this is an appropriate case for this Court to intervene in exercising its appellate jurisdiction under Section 256 (2) of the Criminal Procedure Act. It is prudent to remit this matter to the Magistrate’s Court to have a proper sentencing hearing and then proceed to the sentence based on the correct legal principles and best approach suggested by the Supreme Court in Vaqewa v State (supra).
    
21. I accordingly make the following orders:

The Appeal is allowed,
2. The sentence dated 19th of November 2020 is set aside,

100. The matter is remitted to the Magistrate’s Court of Rakiraki to sentence the Appellant.
     

22. Thirty (30) days to appeal to the Fiji Court of Appeal.
    
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Hon. Mr. Justice R.D.R.T. Rajasinghe





08^th February 2022




Solicitors
Ofbr>Office of the Legal Aid Commission for the Appellant.
Office of the Director of Public Prosecutions for the Respondent.