Vura v The State [2005] FJSC 7; CAV0001.2005S (21 October 2005)

IN THE SUPREME COURT OF FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0001 of 2005S
( Fiji Court of Appeal No. AAU0061 of 2004S)

BETWEEN:

PAULA VURA
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice Daniel Fatiaki, President of Supreme Court
The Rt Hon Justice Thomas Gault, Judge of Supreme Court
The Hon Justice Kenneth Handley, Judge of Supreme Court

Hearing: Tuesday, 12 October 2005, Suva

Counsel: Petitioner in Person
Mr R. Gibson and Mr D. Gounder for the Respondent

Date of Judgment: Friday, 21 October 2005, Suva

REASONS FOR JUDGMENT ON PETITION FOR SPECIAL LEAVE TO APPEAL

[1] At the end of the hearing the Court announced that the petition would be dismissed and that reasons would be given in writing in due course. Those reasons are now given.

[2] The petitioner was one of a group who planned and executed the robbery of a private residence at Veisari. Two occupants were present when they broke in. Other occupants returned while the offenders were still there. Household and personal items were taken and loaded into a vehicle belonging to the family. One family member was taken forcefully with the offenders when they left.

[3] In the course of the intrusion, the victims were threatened and tied up. Fortunately no-one was physically injured and the young family member who was abducted was later released unharmed.

[4] The petitioner confessed to the police his participation in the offending. He eventually pleaded guilty to five charges of robbery (all part of the same incident), one of unlawful use of a motor vehicle, one of driving without a licence and one of driving in contravention of third party insurance risk. He was sentenced in the Magistrate’s Court, Suva on 27 February 2004. In respect of four of the robbery offences the sentence was imprisonment for 7 years. On the other count of robbery (presumably because of the value of property stolen), the sentence was 9 years. For the driving offences the sentences were respectively of 1, 6 and 12 months. All, sentences were ordered to be served concurrently making a total effective sentence of 9 years imprisonment. There was also an order of disqualification for 12 months.

[5] The petitioner appealed to the High Court against his sentence. He challenged some of the facts on which he had been sentenced by the Magistrate - in particular that he tied up some of the victims and that he carried a cane knife – though he did not dispute that he knew a cane knife was being carried by one of the group. He submitted that there had been insufficient credit given for his guilty plea, remorse, and family responsibilities.

[6] The decision of the High Court was that the sentence of 9 years was correct in principle, though the separate concurrent sentences on the robbery charges were adjusted so that they were all of 9 years reflecting the identical circumstances.

[7] The petitioner appealed to the Court of Appeal contending that the sentence was unduly harsh, disparate and did not sufficiently allow for mitigating factors. His appeal was dismissed in light of the limited jurisdiction conferred by Section 22 of the Court of Appeal Act to entertain sentence appeals from the High Court acting in its appellate jurisdiction. That provision permits appeals only on the ground that the sentence was an unlawful one or was passed in consequence of an error of law. The Court held that the grounds put forward did not qualify.

[8] This Court has no wider powers than the Court of Appeal and therefore can consider appeals against sentence only if it is contended that a sentence is unlawful or was imposed in consequence of an error of law. In addition, under Section 7(2) of the Supreme Court Act 1998, leave to appeal to this Court cannot be granted unless:

“ (a) a question of general legal importance is involved;

(b) a substantial question of principle affecting the administration of criminal justice is involved; or

(c) substantial and grave injustice may otherwise occur.”

[9] In his petition for special leave to appeal the petitioner put forward grounds similar to those advanced in the Court of Appeal. In his oral submissions he raised some factual matters in an effort to show that he played a lesser role in the offending and benefited less than others, but these are not matters we can investigate on a final appeal.

[10] The principal point relied on was one of disparity of sentence. The appellant submitted, in effect, that his sentence is inappropriately harsh when compared with a co-offender he claimed was the instigator.

[11] At the time the petitioner’s sentence was imposed on 26 February 2004, two co-offenders had been sentenced by a different Magistrate. One had been sentenced to imprisonment for 9 years to be served consecutively with a current sentence of 5 years resulting in a total term of 14 years. The other was sentenced to 4 years to be served consecutively with a 10 year sentence he was already serving, also making a total of 14 years. Taking into account the principle of totality in sentencing there is nothing in those sentences inconsistent with the sentence subsequently imposed on the petitioner.

[12] However, after the petitioner was sentenced, one of the co-offenders successfully appealed against his earlier 10 year sentence for unrelated offending. That was reduced to 4 years with the effect that his total sentence for the robbery we are concerned with and the unrelated offending is less than the petitioner’s sentence.

[13] Plainly if the Magistrate who sentenced the co-offender had known that the earlier 10 year sentence would be reduced to 4 years he would have imposed a much harsher sentence for the robberies. But there can be no justification for reducing an entirely appropriate sentence on disparity grounds because the sentence on a co-offender has subsequently, through correction of unrelated error, become unacceptably low.

[14] Accordingly both because no error of law had been disclosed, and because, in any event we are satisfied there is no basis for appellate intervention, special leave to appeal must be refused.

[15] This case plainly demonstrates the difficulties that can arise where co-offenders, even when they plead guilty, are not dealt with together by the same Court.

Hon. Justice Daniel Fatiaki

President of Supreme Court

Rt Hon Justice Thomas Gault

Judge of Supreme Court

Hon. Justice Kenneth Handley

Judge of Supreme Court

Solicitors:

Petitioner in Person

Office of the Director of Public Prosecutions, Suva for the Respondent

CAV0001.05S