Lalagavesi v State [2000] FJLawRp 58; [2000] 1 FLR 266 (26 October 2000)

[2000] 1 FLR 266

IN THE HIGH COURT OF FIJI

SAULA LALAGAVESI

AND

KITIONE MATAKALI

v

STATE

High Court Criminal Appellate Jurisdiction
Prakash, J
26 October, 2000
HAA059, HAA060, HAA061, HAA062, HAA063 and HAA064/00L

Sentence - principles of sentencing - larceny, shop breaking, entering, house breaking, damaging property - Magistrate substantially influenced by appellants previous conviction record - court not to sentence accused on previous record - Proper way of sentencing emphasized - Penal Code ss29, 324

On a guilty plea to a joint charge of 6 counts in total of larceny, shop breaking, entering, house breaking, damaging property, the First appellant was sentenced to 2½ years for each count, to be served concurrently. He had 20 previous criminal convictions, but some property was recovered. The Second appellant was sentenced to 2½ years for each count consisting of 3 counts shop breaking, entering and larceny, house breaking. He was 19 years old, had 5 previous convictions but had never been sent to prison.

Held - (1) Where 2.5 years sentence exceeds maximum sentence, it was illegal and substituted for 18 months.

(2) The same sentence for a number of offences offends the principle of individualized sentence for each particular offence.

(3) Where two or more offenders are concerned in the same offence or a series of offences, a proper relationship between sentence passed on each offender considering the degree of culpability or the presence of mitigating factors, which should be reflected in a distinction between their sentences. Other factors to consider: guilty pleas, the value of properties involved in the offence and recovered, the duty of courts to protect the public and their property, availability of caution statements, justice to be served.

Sentence varied: First appellant sentenced to 18 months each count, 2nd appellant sentenced to 12 months for each count, suspended for 2 years, to be served concurrently.

Cases referred to in judgment:
Foll Eliaz Mohammed v State HAA0041/98L
Foll Donald Asish Chand and Segran Murti v State HAA019/99S
foll Simione Tamani v State HAA 019/99S
Foll Solomone Tavuta v State HAA 4, 5, 6, 7, 8 and 9/81
Foll Willie Sin v Regiman AAU 13/71
Cons R v Queen [1982] Crim. L.R. 56
cons State v Ramendra Chandra HAC0008/99L
cons State v Isaia Saukova [2000] HAA013/00L 6 July 2000
cons Netani Seniwau v State HAC 0030/97L

Appellants in person
Linda Fagbenro for the respondent

26 October, 2000.

JUDGMENT

Prakash, J

These are appeals by the two Appellants against sentences imposed on them by the Tavua Magistrates' Court on 24 May 2000. Both Appellants had pleaded guilty to a series of offences before the learned Magistrate in Tavua Magistrates' Court.

The first Appellant was charged for the following:

(1) Criminal Case No. 99/2000 - 1 Count of Larceny

(2) Criminal Case No. 98/2000 - 1 Count of Shop Breaking, Entering and Larceny

(3) Criminal Case No. 100/2000 - 1 Count of House Breaking, Entering and Larceny

(4) Criminal Case No. 97/2000 - 1 Count of Shop Breaking, Entering and Larceny

(5) Criminal Case No. 101/2000 - 1 Count of Damaging property

(6) Criminal Case No. 102/2000 - 1 Count of Shop Breaking, Entering and Larceny

The second Appellant was jointly charged with the first Appellant in Criminal Cases 97/2000; 98/2000 and 102/2000.

Each accused/Appellant was sentenced to 2½ years on each Count. The sentences were to be served concurrently.

The grounds of Appeal for both are similar and put in rather loose and unclear terms. However, the essential grounds that can be discerned from the Petitions are:

(a) that they pleaded guilty and these were not taken into consideration.

(b) the sentences are harsh, excessive and oppressive.

(c) that the sentences were based on previous convictions.

The Court was initially not clear whether the Appellants were also questioning their guilty pleas. However, both Appellants clarified that they accept their guilty plea in all the Counts. It was the sentences that they were questioning, and seeking mercy and justice from this Court.

Learned State Counsel has conceded that the sentence in Cr. Case 101/2000 (Cr. App. HAA063/2000L) for the offence of Damaging Property is illegal. This offence, under s.324 of the Penal Code, carries a maximum sentence of 2 years. As such the Court quashes this sentence and will substitute a sentence of 18 months for reasons outlined later.

The Court is grateful to the learned State Counsel for the helpful submissions on the relevant principles of sentencing for the offences for which the two Appellants were charged in the Magistrates Court. The tendering of relevant local authorities is also appreciated. She has also conceded that in view of the guilty pleas by both Appellants a slightly reduced sentence will be just in the circumstances.

It is clear from the records of the Magistrates Court and the previous convictions tendered that the first Appellant Saula Lalagavesi has a very unattractive criminal record of 20 previous convictions. The learned Magistrate did take this into account. However, she was also not convinced that his pleas for another chance to rehabilitate himself was not genuine. As she stated "He never learnt from his past wrong doings. Soon after his release from Prison he continued with his criminal activities". The learned Magistrate was correct to consider the Courts' duty to protect the public and their property. She also noted that some properties were recovered and that the accused had pleaded guilty.

However, the Court gets the impression from the records that the learned Magistrate was substantially influenced by the Appellants previous conviction record. Courts need to be careful not to sentence accused on their record since they have already been punished for their previous offences (see R v Queen [1982] Crim. L.R. 56 quoted in the sentencing remarks in State v Ramendra Chandra s/o Ram Karan, Lautoka High Court Cr. Case HAC0008/99.) There is nothing wrong in making the sentences concurrent for similar offences. However, the Court notes that in Cr. Case 100/2000 the household items involved were worth $85:00 and all were recovered. In case 99/2000 he was charged for Larceny of a car radio worth $70:50 from an unlocked taxi. The item was recovered. One may assume that the admissions of the accused led to the recovery of the properties concerned. In other offences there were no recoveries. Yet all sentences were the same. This does seem to offend the principle of individualised sentencing for each particular offence. In Lister 5.10.72, 787/13/72 it was stated that "the proper way of sentencing is to look at the offence itself and the circumstances in which it was committed, then to assess the proper sentence for the offence on the basis that there are no mitigating circumstances, and finally to look to see what the mitigating circumstances are, if any, to reduce the assessed sentence to give effect to the mitigating circumstances" (quoted in Thomas D.A. (1980) p 35 footnote 1). The Court is not clear on what basis the sentences for each offence which had varying amounts of property stolen, apparently in different circumstances, were the same 2½ years. The Court has already noted the illegality of the sentence for the offence of Damaging Property.

As regards the second Appellant the Court notes that he was just over 19 years at the time of sentencing. He had only 5 previous convictions compared to the first Appellant. He was never sent to prison before. It is apparent that he committed a series of offences in 1997 for which he was dealt together on 08/12/97. They appear to be related though the Court cannot be sure about this. He was fined and also put on probation for up to 18 months. The offences for which he was convicted and sentenced in May 2000 occurred in April/May 2000, well after his probation.

The facts outlined before the Magistrates Court in Tavua are very bare. They do not disclose the culpability of each of the Appellants in relation to the offences they are jointly charged. As D.A. Thomas Principles of Sentencing (2nd Edition, 1980) states "Where two or more offenders are concerned in the same offence or series of offences, a proper relationship should be established between the sentences passed on each offender .... A difference in the degree of culpability, or the presence of mitigating factors affecting one offender only, should be reflected in a distinction between their sentences." (pp. 64-65). It is not clear from the facts on record what was the culpability of each of the Appellants. The Court does note that the first Appellant was about 25 years old at the time of the offending. He had a very unattractive record with preponderance of similar offences. The record is unhelpful as to whether he was the instigator of the offences, and whether the second Appellant who was younger, only followed the older more experienced person.

It is also not clear whether the second Appellant's confession led to the arrest of his co-accused or vice versa. The availability of the Caution Statements of the Appellants would have assisted the Magistrates Court greatly in considering the appropriate sentences. As has been suggested by my brother Justice Gates it is advisable that when unrepresented accused are pleading guilty their statements to the Police be handed to the Court (State v Isaia Saukova Cr. App HAA013 of 2000L). Further Justice Lyons had stated "Prosecution's job is not to obtain conviction at all costs. It is to do the job fairly and justly as a representative of the State and make sure that the Court is appraised fully of all facts whether adverse to the interests of the State or otherwise. This is particularly applicable in the instance of a self represented person." (Netani Seniwau v State., Cr. Appeal HAC0030/97L p.5).

In studying the local cases cited by learned State Counsel it is clear that the Courts do take into account guilty pleas, the value of properties involved in the offence and recovered etc in deciding whether to interfere with Magistrates Court decisions on sentences or not (see, for example, Eliaz Mohammed v State Cr. App. HAA0041/98L; Simione Tamani v State Cr. App. HAA030/2000S; Donald Asish Chand and Segran Murti v State Cr. App. HAA019/99S; Solomone Tavuta v State Cr. Appeal Nos. 4,5,6,7,8 and 9 of 1981; Willie Sin v Regiman FCA Cr. App. 13 of 1971).

The Court has considered the relevant principles, and the factors and circumstances relevant to the cases before this Court. In view of the information available to Court feels constrained to vary the sentences in each case individually. However, justice would be done by varying the sentences on each Appellant as follows:

(1) First Appellant, Saula Lalagavesi - the sentence imposed on him on each case by the Tavua Magistrates Court is reduced to eighteen (18) months. The sentences are to be served concurrently.

(2) Appellant two (2) Kitione Matakali - the sentences imposed by the Tavua Magistrates Court are quashed. In substitution a sentence of 12 months is imposed on each Count. These are to be served concurrently. The sentences are suspended for a period of 2 years under Section 29 of the Penal Code (the terms of the Order under Section 29 are explained to the 2nd Appellant).

Appeal allowed.

Marie Chan