Saurara v State [2008] FJSC 43; CAV0020.2007 (26 February 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0020/07
(Fiji Court of Appeal No. AAU0052 of 2005S)

BETWEEN:

EMIRAMI SAURARA
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: 26 February 2008

Counsel: Petitioner in Person
A. Prasad for the Respondent

Date of Judgment: 26 February 2008, Suva

JUDGMENT OF THE COURT

1. The Court dismissed the petition in this matter on 26 February 2008. We now publish our reasons for so doing.
   
2. On 4 July 2005 Emirami Saurara pleaded guilty to charges of robbery with violence and unlawful use of a motor vehicle. The charges, as set out in an Information dated 28 June 2005, were as follows:
   

"ROBBERY WITH VIOLENCE: Contrary to section 293(1)(a) of the Penal Code, Cap 17.

Particulars of Offence

IMTIAZ ALI s/o Mubarak Ali, EMIRAMI SAURARA, PENIASI TUILASELASE, JOELI TIKOLEVU, ALEX RAJENDRA s/o Ram Sundar and ROHIT CHAND s/o Saras Chand on the 9th day of November, 2004 at Sigatoka town in the Western Division robbed GANESH MUNI CHANDRA s/o Hari Chandra of cash $11,307.65, cheques $580,632.61 and Foreign Currencies $1624.00 to the total of $593,563.26 and immediately before such robbery used personal violence on the said GANESH MUNI CHANDRA s/o Hari Chandra, the property of Tappoos Limited.

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to section 292 of Penal Code, Cap 17.

Particulars of Offence

ALEX RAJENDRA PRASAD s/o Ram Sundar, EMIRAMI SAURARA, PENIASI TUILASELASE and JOELI TIKOLEVU on the 9th day of November 2004 at Sigatoka town in the Western Division unlawfully and without the colour of right but not to be guilty of stealing took to their own use motor vehicle registration number DP 920 the property of Tappoos Limited."

3. The facts were not disputed at sentencing. On 9 November 2004 at about 12.30pm Ganesh Chandra, an employee of Tappoos Limited (Tappoos), was at work at the company’s office in Sigatoka town. He and two other employees of the company were in the car park of the company’s premises with a bag containing cash, cheques and foreign currency belonging to the company which they were taking to bank. Mr Chandra opened the trunk of the car and put the brief case containing the money in it. Another employee of Tappoos, Mr Kumar, was sitting in the back of the car and a third employee, Mr Naren, was sitting in the front passenger seat. Mr Chandra started the car and began to reverse it when Mr Saurara and others, wearing masks, came up to the vehicle and opened the driver’s side door. Mr Chandra applied the brakes and turned the engine off. Mr Saurara and his accomplices punched Mr Chandra on the chest about three times, pulled him out of the driver’s seat and threw him on the road. The other passengers were threatened with iron rods and sticks and ran away from the car. Mr Saurara then got into the vehicle with his accomplices and drove it away at high speed. They abandoned the vehicle at Waibogi Road in Sigatoka and took the brief case containing the money. They shared the money between them and disposed of the brief case. Mr Saurara was subsequently arrested and at the time of his arrest an amount of $2,175 in cash was recovered from him.
   
4. Mr Saurara was interviewed under caution on 10 November 2004. He admitted the offence and gave details to the police of the planning that had gone into its commission.
   
5. At the time of sentencing, Mr Saurara was 22 years of age, unemployed and single. He had been educated to Form 5 level. He was living at Nailaga Village in Ba. Although his record of prior offences did not appear in the Court record it was referred to in the remarks of the sentencing judge. He had six prior convictions for robbery with violence between 31 August 2000 and July 2005. The offence to which he pleaded guilty in July 2005 was his seventh offence of that type.
   
6. The sentencing judge, Connors J, gave credit for Mr Saurara’s ready admission of the commission of the offence upon his apprehension and the fact that his plea of guilty had saved the police, the Court and the community significantly. However the offence was a very serious armed robbery of commercial premises. Mr Saurara and his accomplices were armed. They had attacked the driver of the vehicle although fortunately he had not suffered great injury. The amount of money that was taken was significant, albeit the great majority of it was recovered. The fact that Mr Saurara had himself made no personal gain assisted him little.
   
7. The sentencing judge took as his starting point a term of ten years imprisonment. He gave a discount of three years for a plea of guilty but then brought to account circumstances of aggravation being the planning, the attack on the driver and the large amount of money involved. He also said:
   

"From your personal point of view, your situation is aggravated by the six prior offences of the same or similar type and accordingly, I then increase the sentence from one of 6 years to one of 9 years."

8. With respect to the second count, unlawful use of a motor vehicle, Mr Saurara was sentenced to imprisonment for a term of six months. The sentences were to be served concurrently.
   
9. On 28 July 2005 Mr Saurara lodged a Petition of Appeal in the Court of Appeal against the sentences imposed on him. The grounds of appeal were stated thus in a letter filed on 3 August 2005:
   

"a) That the sentence is harsh and excessive

b) That the learned sentencing Judge erred in fact in considering a 10 year starting point.

c) That the learned sentencing Judge erred in fact in considering the appellant previous conviction as justifying the sentence imposed." [sic]

10. On 18 April 2006 the President of the Court of Appeal made an order in respect of the application in the following terms:
    

"No grounds shown.

Must fail.

Leave refused."

11. Subsequently, in a letter dated "2nd Jan, 2006", presumably a misprint for 2 June 2006, Mr Saurara applied, under s 35(3) of the Court of Appeal Act, to have his appeal determined by a Full Court. On 25 June 2007 the Court of Appeal, evidently acting under s 35(3) of the Court of Appeal Act, dismissed the application for leave to appeal.
    
12. The Court noted that the question before it was whether the robbery in the case could properly be considered as falling into the category of "very serious armed robberies" attracting a starting point sentence of about ten years: Raymond Sikeli Sing v The State AAU008/2000). The Court characterised the offence as a bold one, committed in broad daylight by a group of three masked armed men, using physical violence against the driver and threats of violence against the other two passengers in the motor vehicle. It was "an instance of a form of highway piracy that is becoming widespread in other parts of the world". It noted that the value of the money and cheques taken was very large even though some was later recovered. In particular their Lordships said (at [8]):
    

... the learned Judge considered that the offence was significantly aggravated by the planning, the violence and the large amount involved, as well as by the six similar prior offences of robbery recorded against the applicant since 2000, with the consequence that the sentence was brought back to 9 years."

Their Lordships observed that the sentence imposed might well be a heavy one for a young man of 22 years, but that he had shown a degree of persistence in committing offences of that kind. In addition, they were committed after Parliament had passed the Penal Code (Penalties) (Amendment) Bill enacting s 33 of the Penal Code. This was said to demonstrate Parliament’s concern at the rising incidence or level of violent offences in Fijian society. The Court did not consider that the sentencing Judge’s exercise of his discretion miscarried. The application for leave to appeal was dismissed.

13. On 19 July 2007 Mr Saurara submitted an appeal to this Court which is treated, for the purposes of these proceedings, as a petition for special leave to appeal against the decision of the Court of Appeal.
    
14. The grounds of the proposed appeal can be summarised as follows:
    

1. That the sentence was harsh in totality and disproportionate to the offending.

2. That the Court erred in law and in fact adopting a starting point of ten years for the sentence in reliance upon a New Zealand case of R v Mako [2002] 2 NZLR 170.

3. The balancing of aggravating and mitigating factors was erroneous.

4. That the Court of Appeal was wrong to have regard to s 33 of the Penal Code as it had played no part in the original sentence.

5. That a lengthy sentence was not conducive to the rehabilitation of young offenders and to treat the prior offences as an aggravating factor was wrong in principle.

15. Mr Saurara’s letter to the Supreme Court added what he described as a "Fresh Ground" as follows:
    

"1) That the learned judges erred in law and in fact in considering the six prior offences of robbery recorded against the appellant, the wearing of masked during the committed of the offence, and also the carrying of axes, stick and rod thus contributed greatly to the aggravating factor." [sic]

Mr Saurara also contended that he had committed only four offences of robbery prior to the offence the subject of this petition. He also maintained that none of the offenders wore masks. The offenders were not all armed during the commission of the offence, although one was carrying an axe and a rod inside a sack which he claimed was not used at all to threaten the victim.

16. The only issue giving rise to a ground for special leave, is the use by the sentencing Judge of prior offences as aggravating factors. In our opinion it is wrong in principle to treat convictions for prior offences as aggravating circumstances attaching to a subsequent offence for the purposes of sentencing. An offender who has a significant record of prior offences is obviously unable to claim the benefit of mitigation on account of previous good character or a relatively minor criminal record. When considering the deterrent element of punishment necessarily involved in sentencing, the fact that a person has been convicted and sentenced previously for a number of offences similar to that under consideration by the sentencing court, may support a higher penalty in the current sentence by way of a more effective deterrent. There are obviously limits on the extent to which sentences may be increased by reference to such considerations. It is, however, strictly incorrect to regard the commission of previous offences as an aggravating circumstance in relation to the offence being dealt with.
    
17. In the present case, however, we are of the opinion that a correct application of principle would have yielded the same result as that reached by the sentencing judge. We would therefore grant special leave, but dismiss the appeal.
    

Orders:

1. Special leave to appeal is granted on the question whether the commission of prior offences is properly to be regarded as an aggravating circumstance for the purpose of sentencing.

2. The appeal is 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 Prosecution, Suva for the Respondent