Lilo v State [2008] FJSC 36; CAV0006.2007 (25 February 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0006/2007
(Fiji Court of Appeal AAU0083/2005)

BETWEEN:

SIRELI LILO
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice Robert French, Judge of the Supreme Court
The Hon. Justice Kenneth Handley, Judge of the Supreme Court
The Hon. Justice Mark Weinberg, Judge of the Supreme Court

Hearing: 21 February 2008, Suva

Counsel: Petitioner in Person
A Driu for the Respondent

Date of Judgment: Monday, 25 February 2008, Suva

JUDGMENT OF THE COURT

1. The Court refused special leave to appeal in this case and dismissed the petition. We now publish our reasons.
   
2. On 23 December 2004, Sireli Lilo appeared in the Magistrates Court at Lautoka charged with robbery with violence contrary to s 293(1)(b) of the Penal Code, Cap 17. Initially he elected a Magistrates Court trial but on 18 January 2005 he elected a High Court trial. The amended information in the High Court, dated 13 April 2005, set out the particulars of the offence with which he was charged:
   

"SIRELI LILO and HENRY HOYT, on the 8th day of October 2004, at Lautoka in the Western Division, robbed NITESH KUMAR s/o Indar Deo of Alcatel Mobile valued at $250.00, Casio Wrist-watch valued at $100.00 and $50.00 Cash, all to the total value of $400.00 and immediately before the time of such robbery did use personal violence to the said Nitesh Kumar s/o Indar Deo."

3. On 6 June 2005 Mr Lilo and his co-accused each pleaded guilty to the charge of robbery with violence. Winter J imposed a sentence of four and a half years imprisonment on Mr Lilo and three years on Mr Hoyt.
   
4. On 26 September 2005 Mr Lilo applied to the Court of Appeal for leave to appeal out of time against the sentence. On 16 January 2006 the President of the Court of Appeal gave leave to appeal against the sentence.
   
5. On 10 November 2006 the Court of Appeal dismissed Mr Lilo’s appeal against sentence. Mr Lilo then applied to this Court on 23 December 2006 for special leave to appeal against the judgment of the Court of Appeal. The basis upon which special leave was sought was that both accused should have received the same sentence and that the time the petitioner spent on remand should also have been deducted.
   
6. In imposing sentence, Winter J in the High Court described the offence as "an opportunistic street mugging". He said to the two accused:
   

"You found your victim late at night, he was walking home alone after a night of celebration. You pounced on him. You dragged him into an alleyway. You grabbed him by the throat. You punched him in the face and held his mouth to stop him shouting for help. You stole his mobile phone, his wristwatch and his money ... this was a cowardly, mean, violent and shameful act."

7. The sentencing judge noted that Mr Lilo had previous convictions. In particular, in May 1998 he was convicted in the High Court of rape and robbery with violence and received a four year term of imprisonment. His co-accused on the other hand had no prior record. The sentencing judge took into account the relative youth of both offenders. He noted that Mr Lilo had already served three months on remand. He took into account his guilty plea although it was a late one which did not entitle him to the usual discount associated with an early guilty plea. His approach to calculation of the sentence imposed on Mr Lilo was to take as a notional starting point a sentence of five years. He then added a notional three years on account of Mr Lilo’s prior conviction. As observed in the Court of Appeal this approach is impermissible. A person who has been sentenced and has served a term of imprisonment for an offence and is subsequently convicted of a later offence cannot have time added to the sentence in respect of the later offence on account of the earlier offence. The correct approach is to consider whether the absence of any prior criminal history or a prior history of only minor offending can be taken into account in mitigation of a term that might otherwise properly be imposed in respect of the offence before the sentencing court. However, as the Court of Appeal held, this error was immaterial because the aggravating circumstances in respect of both accused led to the same increase of three years on the notional starting point for each. In the event, the trial judge, having regard to mitigating factors, deducted three years from what he described as the "aggravated penalty". He said he settled on a "general sentence of five years imprisonment". Again, this was evidently a notional figure from which further reductions were made. He specifically reduced the five years imprisonment to four and a half years for Mr Lilo because of the three months spent on remand. Mr Lilo therefore received the benefit of a six month reduction on account of three months in remand. Mr Hoyt received the lesser sentence of three years as it was his first offence.
   
8. In the event, the result was properly within the trial judge’s sentencing discretion and was not informed by any error of law which would justify interference. No ground warranting the grant of special leave was disclosed, and the application was accordingly dismissed.
   

Hon Justice Robert French
Judge of the Supreme Court

Hon Justice Kenneth Handley
Judge of the Supreme Court

Hon Justice Mark Weinberg
Judge of the Supreme Court

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