Rasuaki v State [2008] FJSC 11; CAV0008.2006S (23 July 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO.CAV0008 OF 2006S
(Fiji Court of Appeal No AAU0046 of 2005S)

BETWEEN:

TANIELA RASUAKI
Petitioner

AND:

THE STATE
Respondent

Coram : The Hon. Justice Keith Mason, Judge of the Supreme Court
The Hon. Justice Kenneth Handley, Judge of the Supreme Court
The Hon. Justice Ronald Sackville, Judge of the Supreme Court

Hearing : Tuesday, 15 July 2008, Suva

Counsel : Petitioner in Person
Ms. A. Prasad for the Respondent

Date of Judgment: Wednesday, 23 July 2008

JUDGMENT OF THE COURT

[1] On 22 July 2008, the Court pronounced the following orders on this petition:

1. Petition for special leave to appeal granted.
   
2. Appeal allowed.
   
3. Set aside the sentences of ten years imprisonment imposed on the petitioner by the Ba Magistrates Court on 26 September 2003 and confirmed by the High Court at Lautoka on 13 September 2004.
   
4. In lieu thereof the petitioner is sentenced to a term of 5 ½ years imprisonment to run from 26 September 2003.
   

[2] The Court indicated that it would give reasons for these orders later. These are the reasons.

[3] The petitioner pleaded guilty in the Ba Magistrate’s Court on 26 September 2003 to seven counts, each of which arose out of events occurring in the late evening of 21 September 2003 at Navau, Ba. The petitioner was duly convicted on four counts of robbery with violence and one count each of unlawful use of a motor vehicle, driving a motor vehicle without a driving licence and driving a motor vehicle in contravention of a third party policy risk.

[4] The circumstances in which the offences were committed were described in a judgment of the High Court, delivered on 13 August 2004, on an appeal by the petitioner and a co-offender, Seremaia Naicovi, against the sentences imposed upon them by the Magistrate’s Court:

"On 21st September 2003 at about 2230 hours at Navau, Ba, the appellants together with 4 others punched and threatened with a cane knife, Naresh Chand, Ravindra Singh, Prakash Chand and Jitendra Padarath and robbed those persons of items and goods, having a total value of approximately $6,100.00. In addition, the appellants together with 4 others, on the same date and at about the same time, unlawfully used a motor vehicle, the property of Jitendra Padarath. In addition, the appellant Rasuaki drove the said vehicle without a driving licence and in contravention of the third party policy risk."

[5] The Magistrate’s Court imposed the following sentences on the petitioner:

Counts 1 and 2 – 5 years’ imprisonment on each count, to be served consecutively.

Counts 3 and 4 – 5 years’ imprisonment on each, to be served concurrently with the sentences imposed on Counts 1 and 2.

Count 5 – 6 months’ imprisonment, to be served concurrently with the other sentences.

Counts 6 and 7 – disqualified from driving for 1 year.

These penalties amounted effectively to a sentence of 10 years’ imprisonment in all. The petitioner had one previous conviction in 2002 for indecent assault, for which he was sentenced to 18 months imprisonment.

[6] The Magistrate’s Court also sentenced the petitioner’s co-offender, Mr. Naicovi, to a term of 10 years’ imprisonment for the same offences. Mr. Naicovi had a previous conviction for robbery with violence.

[7] Both the petitioner and Mr. Naicovi appealed to the High Court against their sentences. The appeals were heard together but were dismissed by Connors J on 13 August 2004.

[8] On 9 August 2005, Ward P, as a single judge of the Court of Appeal, granted the petitioner leave to apply out of time to appeal against his sentence. However, his Lordship dismissed the application under s35(2) of the Court of Appeal Act on the ground that the petitioner had no right of appeal to the Court of Appeal. His Lordship took this course presumably because he formed the view that the petitioner could not establish that the sentence imposed on him was unlawful
or had been passed in consequence of an error of law: see Court of Appeal Act s22(1A).

[9] It appears that Ward P was not made aware that another two of the petitioner’s co-offenders, Rajnesh Ram Sharma and Seruvi Ratunidrola, had been sentenced in the High Court on 22 June 2005, some two months before Ward P dismissed the petitioner’s application to the Court of Appeal. Both of these co-offenders had apparently been apprehended some time after the offences had been committed. Both pleaded guilty and were sentenced by the High Court. Mr. Sharma was sentenced to a total of 5 years’ imprisonment, while Mr. Ratunidrola, who had a large number of prior convictions, received a sentence of 5½ years’ imprisonment.

[10] The sentencing judge, Connors J, took into account in imposing sentences on the two co-offenders, that a fifth offender, Aiyas Ali, had been sentenced to a term of 7 years’ imprisonment. Mr. Ali had been described by Govind J, who sentenced him, as a recidivist who had spent 14 of his 32 years in prison.

[11] On 9 March 2007 the Court of Appeal allowed an appeal against sentence by Mr. Naicovi. It is not clear why Mr. Naicovi’s appeal was not heard until some 2½ years after his sentence of 10 years in imprisonment had been confirmed by the High Court on 13 August 2004. In any event, he was granted leave to appeal against his sentence on the ground that it was so disproportionate to those imposed upon several of his co-accused that it was wrong in law, and the appeal was therefore competent under s22(1A) of the Court of Appeal Act.

[12] In its judgment, the Court of Appeal recorded the sentences that had been imposed on the co-offenders and noted that, since the full record of the various proceedings was no longer available, the court was obliged to treat each offender as equally culpable for the offences committed on 21 September 2003.

[13] The DPP accepted before the Court of Appeal that there was a prima facie disparity of sentence between that imposed on Mr. Naicovi and the sentences imposed on the co-offenders who had been dealt with in the High Court. The Court of Appeal said this:

"In the present case, two co-offenders (one of whom was of good character) pleased guilty at the first opportunity in the Magistrates’ Court and received sentences which were twice as long as three of their co-accused who were not finally dealt with (by the High Court) until several years after the crime was committed. In our view, this disparity is both unjustifiable and gross.

.....

We appreciate that where different accused are located at different times it may not always be possible to ensure that all are dealt with together. In these circumstances a heavy responsibility rests on judges, magistrates and counsel alike to take every care to ensure that disparate sentences of the kind involved in this appeal are not imposed. Given the particular and indeed peculiar nature of the offences committed by these co-accused we cannot fail to express our surprise that such obviously disparate sentences could have been imposed.

In our view the sentences imposed in the Magistrates’ Court on two young men who had pleaded guilty were on the high side. On the other hand the sentences imposed by the High Court sitting at first instance were plainly too lenient. We do not know why the State did not seek leave to appeal to appeal against those sentences.

In the difficult circumstances resulting from the piecemeal way in which the six co-accused were dealt with, there can now be no wholly satisfactory outcome. The least unsatisfactory course is to allow the appeal and reduce the Appellant’s sentence to one of 6 years imprisonment".

[14] Significantly for the purposes of the present petition to the Court, the Court of Appeal added this comment:

"Before leaving the matter we think it right to indicate that this Court would give favourable consideration to an application for leave to appeal out of time by the co-accused Rasuaki."

[15] Clearly enough, the Court of Appeal, in making this comment, was inviting an application by the petitioner for leave to appeal out of time. Unfortunately, the Court was apparently unaware that Ward P had dismissed the petitioner’s application to the Court of Appeal some 18 months earlier.

[16] On the hearing of the petition for special leave to appeal to this Court, Ms. Prasad, who appeared for the State, accepted that the petitioner had received an obviously disparate sentence from those imposed on his co-offenders by the High Court and on Mr. Naicovi by reason of his successful appeal to the Court of Appeal. Ms. Prasad also accepted that the Court of Appeal in Naicovi had been correct in concluding that it could take into account, on the question of disparity of sentencing, the sentences imposed on Mr. Naicovi’s co-offenders after the High Court had dismissed his appeal from the sentence of 10 years imprisonment imposed on him by the Magistrates Court.

[17] Had Ward P been made aware on 9 August 2005 that the petitioner’s co-offenders had received substantially lighter sentences, he no doubt would have concluded that the petitioner’s application to the Court of Appeal raised a question of law for the purposes of s22(1A)(a) of the Court of Appeal Act. The petition to this Court similarly raises a question of law namely the failure of the Court of Appeal, because it had inadequate information before it, to recognise that the petitioner’s application raised a question of law concerning the principles of parity of sentencing.

[18] In these circumstances, it is appropriate that this Court grant special leave to appeal to the petitioner. Otherwise, he will suffer a substantial and grave injustice within the meaning of s7((2)(c) of the Supreme Court Act 1998. For reasons that have been explained, the order made by Ward P on 9 August 2005 should be set aside and the sentences of 10 years imprisonment imposed on the petitioner by the Magistrates Court and confirmed by the High Court should be quashed.

[19] On the information provided to this Court, if a sentence were imposed on the petitioner commensurate with the sentences on his co-offenders, he would be eligible for immediate release. In order to avoid the potential injustice of a delay in re-sentencing the petitioner, this Court should proceed to re-sentence him now.

[20] In re-sentencing the petitioner, we take into account his previous conviction, his early plea of guilty, the fact that no distinction can be made among the co-offenders in terms of their culpability and the sentences that have been imposed on those co-offenders. Taking those matters into account, we sentence the petitioner to 5½ years imprisonment on each of Counts 1, 2, 3 and 4, such sentences to be served concurrently. The petitioner is sentenced to 6 months imprisonment on Count 5, to be served concurrently with the other sentences. The period of disqualification from driving in respect of Counts 6 and 7 will form part of the petitioner’s sentence although, of course, the period of this disqualification has expired. All sentences will date from 26 September 2003.

Hon. Justice Keith Mason
Judge of the Supreme Court

Hon. Justice Kenneth Handley
Judge of the Supreme Court

Hon. Justice Ronald Sackville
Judge of the Supreme Court

Solicitors:
Petitioner in Person
Office of the Director of Public Prosecutions, Suva, for the Respondent