Narogo v State [2008] FJSC 46; CAV0019.2007 (27 February 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0019/07
(Fiji Court of Appeal No. AAU0040/07, AAU0037/06)

BETWEEN:

PITA NAROGO

SIONE PUPUNU
Petitioners

AND:

THE STATE
Respondent

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

Hearing: 25 February 2008

Counsel: Petitioners in Person
A. Prasad for the Respondent

Date of Judgment: 27 February 2008, Suva

JUDGMENT OF THE COURT

1. Pita Narogo and Sione Pupulu were sentenced on 15 August 2005 in the Suva Magistrates Court for a number of offences. A co-accused, Julian Miller, was sentenced at the same time.
   
2. Essentially, Mr Narogo and Mr Pupulu were involved in a series of robberies of taxi drivers involving violence or the threat of violence. In a number of cases they used a kitchen knife to threaten the taxi driver. The amount of money stolen was small and in each case the driver was tied up, blindfolded and abandoned. In each case the offenders would drive off in the taxi, replace its number plates and abandon it. In one case they used the driver’s ATM card to withdraw sums of money from his account. The offences were committed during a two week period in July.
   
3. A summary of offences and of the sentences imposed in respect of each of them appeared in the magistrate’s sentencing reasons and was reproduced in the judgment, on appeal, of the High Court. It is convenient to reproduce that summary here:
   

File 143/05 Julian Miller & Sione Pupulu

Both were charged with	Sentence
Robbery with Violence	3 years
Unlawful Use of Motor Vehicle	6 months
Abduction	3 years
Wrongful Confinement (section 251)	3 years
Larceny	3 years

All sentences are made concurrent to the sentence of Robbery with Violence which totals 3 years imprisonment.

File 144/05 Julian Miller, Sione Pupulu & Pita Narogo

Both charged with	Sentence
Robbery with Violence	3 years
Unlawful Use of Motor Vehicle	6 months
Abduction	5 years
Larceny	5 years
Larceny	5 years
Larceny	5 years
Larceny	5 years
Larceny	5 years
Larceny	5 years

All sentences are made concurrent to the sentence of Robbery with Violence which totals 5 years imprisonment.

File 145/05 Julian Miller, Sione Pupulu & Pita Narogo

Both charged with	Sentence
Robbery with Violence	3 years
Unlawful Use of Motor Vehicle	6 months
Abduction	3 years
Wrongful Confinement (section 251)	3 years
Larceny	3 years
Resisting Arrest	3 years
Damaging Property	2 years

All sentences are made concurrent to the sentence given for Robbery with Violence which totals 3 years imprisonment.

File 146/05 Pita Narogo

Charged with	Sentence
Robbery with Violence	3 years
Unlawful Use of Motor Vehicle	6 months

Both sentences were made concurrent to each other totalling [sic] 3 years."

4. The sentences imposed in respect of each group of offences designated with a file number were ordered to be served consecutively with each other. On that basis Messrs Narogo and Pupulu each received a total term of eleven years imprisonment. Mr Miller received a total of 8 years imprisonment. All three co-accused appealed to the High Court against the magistrate’s sentence. On 9 June 2006 Shameem J reduced many of the sentences. Sentences for robbery and abduction, within each group of related offences, were to be served consecutively. The remaining sentences within each group were to be served concurrently. It is apparent that Shameem J also effectively directed that the total sentence imposed in respect of each group of related offences was to be served concurrently with each other total sentence so imposed. No issue has been raised in this Court about the correctness of that procedure. Shameem J summarised the sentences imposed by her in respect of the various offences as follows:
   

"File 143/05
Robbery with Violence	- 3 years for 1st Appellant. - 5 years for 2nd Appellant
Unlawful Use	6 months for both Appellants.
Abduction	- 18 months for 1st Appellant. - 2 years for 2nd Appellant
Larceny	- 3 years for both Appellants.
File 144/05
Robbery with Violence	- 3 years for 1st Appellant. - 5 years for 2nd Appellant. - 6 years for 3rd Appellant
Unlawful Use	- 6 months for all Appellants.
Abduction	- 18 months for 1st Appellant. - 2 years for 2nd and 3rd Appellants.
Larceny	- 3 years for 1st and 2nd Appellants on each count. - 5 years for 3rd Appellant on each count.
File 145/05
Robbery with Violence	- 3 years for 1st Appellant. - 5 years for 2nd Appellant. - 6 years for 3rd Appellant.
Unlawful Use	- 6 months for each.
Abduction	-18 months for 1st Appellant -2 years for 2nd & 3rd Appellants
Larceny	-3 years for 1st & 2nd Appellants. -5 years for 3rd Appellant.
Resisting Arrest	- 1 year for 1st Appellant. - 2 years for 2nd & 3rd Appellants.
Damaging Property	- 1 year for all.
File 146/06
Robbery with Violence	- 6 years for 3rd Appellant.
Unlawful Use	- 6 months."

Having regard to the directions given as to consecutive and concurrent sentences, the total sentence imposed on Mr Narogo was eight years imprisonment and on Mr Pupulu, seven years imprisonment. Mr Miller received a total term of four and a half years imprisonment.

5. In her reasons for decision, Shameem J observed that many of the charges contained counts which arose out of the same criminal transaction. She also observed that the sentencing magistrate had failed to explain how he reached the sentences in respect of each file. He had made no reference to the tariff for robbery cases, or to any starting point, or to mitigating or aggravating circumstances. There had been no attempt to adjust the sentences for good character for Mr Miller or for the relevantly minor convictions of Mr Pupulu. She said that in the circumstances fresh sentences should be substituted for all the sentences imposed by the Magistrates Court and the sentences imposed by that Court should be quashed.
   
6. Shameem J identified the tariff for robbery with violence as four to seven years, with sentences at the higher end of the tariff for attacks on taxi drivers. She took a starting point of six years for each offender. Mr Pupulu deserved greater credit for his prior record than Mr Narogo, and Mr Miller was a first offender. For each count of robbery with violence Mr Narogo was sentenced to six years imprisonment, Mr Pupulu to five years imprisonment and Mr Miller to three years imprisonment.
   
7. Terms of six months imposed on each of the offenders for unlawful use of a motor vehicle were held to be correct in principle. Three and five year terms imposed for abduction were reduced to two years for Messrs Pupulu and Narogo and to 18 months for Mr Miller. The wrongful confinement counts were held to be defective and repetitive and were quashed.
   
8. The sentences of three years imprisonment on File 143/05 for larceny were said to be correct in principle. The five year terms imposed in relation to File 144/05 were held to be excessive as that was the statutory maximum possible on first conviction. They were correct for Mr Narogo who had previous convictions for larceny and whose statutory maximum was therefore ten years imprisonment. For Mr Miller and Mr Pupulu the larceny sentences were reduced to three years imprisonment.
   
9. The sentence of three years imprisonment for resisting arrest was held to be excessive. This was reduced to one year for Mr Miller and two years for Messrs Narogo and Pupulu. A two year term for damaging property was also held to be excessive, being the statutory maximum. It was reduced to one year for each of the offenders.
   
10. Shameem J then observed that if all the sentences were served consecutively, they would exceed the proper total sentence in the case. Concurrent sentences would be excessively lenient. She referred to "... the havoc created by the Appellants’ violent and criminal conduct over the 2 week period". The orders that followed were designed to ensure that the sentences reflected the totality of the offending. The sentences for robbery and abduction were to be served consecutively and the remaining sentences were to be served concurrently.
    
11. Mr Narogo and Mr Pupulu both appealed to the Court of Appeal. Mr Narogo’s grounds were:
    

"A) The sentence ordered by the High Court is still too high.

B) The appeal raises issues of sentencing and sentence tariff.

C) That I feel aggrieved that the sentence given to me is higher than the other two co-accused.

D) That there is a miscarriage of justice in my circumstances because of the above."

12. Mr Pupulu’s grounds of appeal to the Court of Appeal were:
    

(a) That the sentence of (7) years is harsh and excessive.

(b) This is the disproportional to the offending behaviour given the maximum sentence is only 4-7 years. [sic]

(c) Appropriate sentencing method would have been to order the same sentence of accused No 1 of 4½ years.

(d) As for the previous convictions to accuse No 2 as stated by justice Shammem in her judgment as miner. [sic]

13. On 20 June 2007 the Court of Appeal dismissed the appeals brought by Messrs Narogo and Pupulu. Their Lordships held that Shameem J had properly taken account of the totality principle and distinguished between the three offenders according to their records of previous offending. Mr Narogo’s record included a number of housebreaking offences, larceny and a conviction for assault occasioning bodily harm. He had previously been sentenced to various periods of imprisonment. The Court of Appeal held that proper regard was given to the requirement of "proportionality" between the various offenders. It considered that the re-sentencing had been performed in accordance with proper legal principles and that it gave effect to established rules of sentencing. In any event, it was satisfied that neither Mr Narogo nor Mr Pupulu had in law any right of appeal to the Court of Appeal and that their appeals must, for that reason, be dismissed. This was because of the provision of s 22(1A) of the Court of Appeal Act which provides:
    

"(1A) No appeal under subsection (1) lies in respect of a sentence imposed by the High Court in its appellate jurisdiction unless the appeal is on the ground –

(a) that the sentence was an unlawful one or was passed in consequence of an error of law ..."

14. The Court of Appeal was of the view that it was plain that there had been no error of law in the exercise by Shameem J of her discretion in imposing new or substituted sentences on the two appellants. The process was said by the Court of Appeal to involve "no question of law" and to have been "entirely a matter of fact". The Court of Appeal held the appeals to be incompetent.
    
15. Messrs Narogo and Pupulu applied to this Court seeking special leave to appeal against the decision of the Court of Appeal. Mr Narogo contended that the Court of Appeal had erred in law in holding that he had no right of appeal on the grounds of disparity of sentence between offenders. He also argued that the Court of Appeal erred in accepting a sentence in excess of the tariff of four to seven years. He said he was punished by the imposition of a term in excess of seven years where the approved tariff under s 293(3) of the Penal Code is five years maximum.
    
16. Mr Pupulu’s petition for leave to appeal was out of time. In support of the extension of time he complained that he was an unrepresented applicant, not knowledgeable in relation to the formulation of grounds of appeal. He said he had only just recently obtained access to advice. He said that the High Court judge had erred in law and fact in imposing differential sentences between the co-defendants who were all charged and convicted for the same offences. He complained that the sentence imposed on his co-offender, Mr Miller, was very lenient. He also complained that he had not received credit for a guilty plea.
    
17. The sentences imposed in the High Court were remarkable for the difference between the total of 4½ years imposed on Mr Miller and the terms of seven years and eight years respectively imposed on Mr Pupulu and Mr Narogo. Messrs Miller and Pupulu were involved together in three incidents giving rise in each case to the same set of offences, namely: robbery with violence, unlawful use of a motor vehicle, abduction and larceny. There was no relevant distinction in terms of their involvement. There was no relevant distinction in terms of age. Mr Miller was a first offender, but Mr Pupulu’s record showed only a conviction in 1999 of larceny in a dwelling house for which he received a suspended sentence and a conviction in 2001 for damaging property for which he was imprisoned for seven days. The difference in their criminal records could not explain the magnitude of the disparity in their sentences.
    
18. In our opinion, given the absence of any explanation in the reasons for judgment in the High Court for the disparity between Messrs Miller and Pupulu, the sentence imposed upon Mr Pupulu does appear to have been imposed as a consequence of an error of law. The error of law was a failure to consider and apply the principle that similar offences, committed in similar circumstances by offenders with similar backgrounds, should receive similar punishment. Mere reference to a point of distinction between offenders will not establish that the principle has been applied when the difference in the sentence actually imposed is greater than could be explained by that distinction. The parity principle which is well established in sentencing law may also be seen in the Fijian context as a particular application of the guarantee, under s 38(1) of the Constitution that:
    

"Every person has the right to equality before the law."

19. The distinction between Mr Pupulu and Mr Narogo under which Mr Narogo received a total sentence one year greater than that imposed upon Mr Pupulu may be explained by reference to his significantly greater criminal record. There was, of course, a set of offences committed by Mr Miller and Mr Pupulu jointly in which Mr Narogo did not participate and another offence committed by Mr Narogo by himself. That does not, however, justify or explain the difference in the sentences imposed upon Mr Narogo and Mr Miller.
    
20. In our opinion, special leave should be granted on the basis that the Court of Appeal wrongly rejected the appeals in this case as incompetent. Their Lordships failed to recognise the error of law in consequence of which the High Court imposed the sentences it did. Those errors by both the Court of Appeal and the High Court involved substantial questions of principle affecting the administration of criminal justice within the meaning of s 7(2) of the Supreme Court Act.
    
21. In reaching the conclusion which we have we are not to be taken as expressing the view that the sentence imposed upon Mr Miller was adequate. Given the nature and seriousness of the offences of which he was convicted, it was plainly inadequate. But for the application of the parity principle we would not have interfered with the sentences imposed upon Mr Pupulu and Mr Narogo. It is surprising that the inadequacy of Mr Miller’s sentence was not challenged on appeal.
    
22. The courts are quite entitled to take a very serious view of offences of robbery with violence against taxi drivers. This was not a case of a single opportunistic offence, committed on the spur of the moment. The three men were acting as a criminal gang taking advantage of the responsibility that taxi drivers have to provide an important public service. Their conduct is worthy of condemnation and of punishment that gives effect to that condemnation. However, for the reasons that we have given, this was a case in which the disparity in the sentences imposed upon the petitioners on the one hand and Mr Miller on the other, has given rise to a legitimate sense of grievance on the part of the petitioners, which should be rectified, at least in part. We will therefore vary their sentences downwards, although not to the plainly inadequate sentence imposed upon Mr Miller.
    
23. In Joji Waqasaqa v The State CAV 0009/2005S this Court observed:
    

"[17] It is clearly established that an unjustified and disproportionate disparity between the sentences imposed upon co-accused may result in an otherwise appropriate sentence being reduced on appeal. The principles were discussed recently by the Court of Appeal (Scott JA, Stein JA, Ford JA) in Sakeasi Ratumaiya v The State Criminal Appeal No AAU0060 of 2005S, 24 March 2006)."

24. The sentences will be varied to a total of six years in the case of Mr Pupulu and a total of seven years in the case of Mr Narogo. This will be done by directing the sentence imposed upon Mr Pupulu for abduction in each case be concurrent as to one year and consecutive as to one year upon the sentence for robbery with violence. A similar direction will be made in the case of Mr Narogo. The total sentences imposed in respect of each group of offences were obviously intended by the High Court to be concurrent with each other and will continue to operate in that way.
    
25. The orders of the Court are therefore:
    

1. The petitions for special leave to appeal are granted.

2. The appeals against the decision of the Court of Appeal delivered 25 June 2007 are allowed.

3. The sentences imposed upon the petitioners by the High Court on 9 June 2006 are varied so that:

(i) each of the sentences of two years imprisonment imposed upon Sione Pupulu for abduction, to be served consecutively with the sentence of five years imposed for the related offence of robbery with violence shall be directed to be served concurrently as to one year and consecutively as to one year;

(ii) each of the sentences of two years imprisonment imposed upon Pita Narogo for abduction, to be served consecutively with the sentence of five years imposed for the related offence of robbery with violence shall be directed to be served concurrently as to one year and consecutively as to one year.

4. For the avoidance of doubt, the effect of the preceding order is that the total sentence imposed upon Sione Pupulu is varied from a total of seven years imprisonment to a total of six years imprisonment and the total sentence imposed upon Pita Narogo is varied from eight years imprisonment to seven years imprisonment.

Hon Justice Keith Mason
Judge of the Supreme Court

Judge of the Supreme Court

Judge of the Supreme Court

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