Mani v State [2008] FJSC 13; CAV0022.2007S (23 July 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0022 OF 2007S
(Fiji Court of Appeal No. AAU0008 of 2006S)

BETWEEN:

EPARAMA MANI
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: Thursday 17th July 2008, Suva

Counsel: Petitioner in Person
Mr P. Bulamainaivalu for the Respondent

Date of Judgment: Wednesday 23rd July 2008, Suva

JUDGMENT OF THE COURT

[1] This is a petition for special leave to appeal from the decision of Ward P, who summarily dismissed as incompetent the petitioner’s appeal to the Court of Appeal from the judgment of Winter J. On 17 January 2006 that Judge allowed the petitioner’s appeal from sentences totalling 14 years imposed by magistrates on 17 February and 30 March 2004 and re-sentenced him to 8½ years imprisonment.

[2] The petitioner’s further appeal to the Court of Appeal under s.22(1A) of the Court of Appeal Act was only available if a sentence of the High Court was unlawful or if one or more was passed "in consequence of an error of law." The error of law relied on was the breach of the parity principle as between co-offenders.

[3] The petitioner was a co-offender with Paula Vura, Jone Di Atulaga and others in a home invasion at Lami on 28 January 2004. In the course of this invasion the co-offenders committed a number of offences including robbery with violence. The petitioner was sentenced by a magistrate to a total of 9 years imprisonment for these offences (the subject offences). The co-offenders Paula Vura and Jone Di Atulaga were sentenced to a total of 9 years and 4 years respectively for those offences.

[4] The petitioner and Jone Di Atulaga had earlier been sentenced for two unrelated offences of breaking and entering another dwelling house with intent to commit a felony, and theft committed on 23 January 2004. The magistrate sentenced the petitioner to 5 years on each of those charges to be served concurrently. Thus the petitioner had been sentenced to imprisonment for a total of 14 years. The co-accused Jone Di Atulaga was also sentenced to a total of 14 years, 5 years consecutive for unrelated offences, committed with the petitioner, 4 years for the subject offences and 5 years consecutive for other offences.

[5] The petitioner could not complain of a breach of the parity principle at this point because he and Paula Vura had both been sentenced for 9 years for the subject offences, and he and Jone Di Atulaga had both received 5 years consecutive for the unrelated offences and 14 years in all. The fact that Jone Di Atulaga only received 4 years for the subject offences instead of 9 mattered little as both were due to serve 14 years overall. The petitioner did not have a parity argument at that time.

[6] The three co-offenders appealed to the High Court but the appeals were heard separately. The appeal by Paula Vura was dismissed by Shameem J on 15 October 2004. His further appeal to the Court of Appeal was dismissed by Ward P on 19 December 2004, and his petition for special leave to appeal to this Court was dismissed on 21 October 2005. We have today dismissed his application under s.122(5) of the Constitution for a review of our earlier decision.

[7] Jone Di Atulaga had more success. On 22 October 2004 Shameem J allowed his appeal from his two sentences of 5 years consecutive for the unrelated offences and substituted sentences of 2 years consecutive. Counsel for the State did not remind the Judge of the sentences of 9 years she had confirmed and imposed on the co-offender Paula Vura for the subject offences not long before, for which that appellant had only received 4 years imprisonment because the magistrate had applied the totality principle.

[8] If the attention of Shameen J had been drawn to the position of Paula Vura she would probably have re-sentenced Jone Di Atulaga for the subject offences, possibly by increasing them to 9 years in line with her decision in the appeal by Paula Vura.

[9] The result of this was that Jone Di Atulaga was now to serve 8 years, only 4 of which were for the subject offences, and the sentences both for those offences, and for the unrelated offences were now out of line. These disparities encouraged this petitioner to seek an extension of time to appeal to the High Court. This was granted and his appeal was allowed by Winter J on 17 January 2006.

[10] Winter J was aware of the decision of Shameem J in Jone Di Atulaga’s case but was not made aware of her decision in Paula Vura’s case. He allowed the petitioner’s appeal from the sentences for the unrelated offences, applied the parity principle, and followed Shameem J’s decision in Jone Di Atulaga’s appeal. He therefore substituted 2 sentences of 2 years concurrent for the 2 sentences of 5 years concurrent imposed by the magistrates.

[11] He noted that Shameem J had confirmed the sentences totalling 4 years for the subject offences imposed by a magistrate on Jone Di Atulaga . He again applied the parity principle and reduced the petitioner’s sentences for the subject offences to 6½ years.

[12] The petitioner appealed to the Court of Appeal, relying on the difference between his sentences for the subject offences of 6½ years, and those imposed on Jone Di Atulaga for 4 years. Since Winter J had acknowledged the parity principle and made a genuine attempt to apply it his sentences were not affected by legal error and the petitioner’s appeal to the Court of Appeal was incompetent under s.22(1A)(a) of the Court of Appeal Act. The decision to dismiss the appeal to the Court of Appeal as incompetent was therefore undoubtedly correct, and for the reasons given in Paula Vura v. The State published at the same time as these reasons Eparama Mani’s petition’s for special leave to appeal to this Court must also be dismissed.

[13] If the discrepancy in the sentences imposed on this petitioner and Jone Di Atulaga for the subject offences warrants some further reduction in the petitioner’s sentences the remedy, if any, must lie elsewhere. The judicial system in Fiji cannot provide that remedy.

[14] In our reasons for judgment in Paula Vura v. The State we drew attention to the Prerogative of Mercy Commission established by the Constitution, and the powers of the President, acting on its advice, to remit, in whole or in part, the punishment imposed by the Courts for criminal offences. This may provide an opportunity for a further review of the sentences imposed on this petitioner for the subject offences.

[14] The order of this Court is that the petition is dismissed.

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