Raqauqau v State [2009] FJSC 2; CAV0023.2008S (10 February 2009)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0023 OF 2008S
(Fiji Court of Appeal No. AAU0100 of 2007S)

BETWEEN:

SAVENACA RAQAUQAU
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice David Ipp, Judge of the Supreme Court
The Hon Justice Ronald Sackville, Judge of the Supreme Court

Hearing: Tuesday, 10th February 2009, Suva

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

Date of Judgment: Tuesday, 10th February 2009, Suva

JUDGMENT OF THE COURT

[1] On 20 April 2007 the petitioner pleaded guilty in the Magistrate’s Court to the offence of robbery with violence and was sentenced to 5 years imprisonment. He appealed to the High Court and on 27 July that year his appeal against sentence was allowed in part and a sentence of 4 years was substituted.

[2] His further appeal to the Court of Appeal was dismissed by a Full Court on 20 June 2008. He has now applied for special leave to appeal to this Court, and has lodged written submissions in support dated 18 August and 30 December 2008.

[3] His principal point is that the Court of Appeal erred in its application of the parity principle by not following or applying the decision of Shameem J in Josefa Ravula v The State of 8 February 2008. A copy of this judgment is attached to the submissions of the State. That appellant had been sentenced by the Magistrate to 2 years imprisonment for robbery with violence which was reduced on appeal to 18 months because, as Shameem J said:

"...the fact that the Appellant had recent previous convictions should not have lead to a scaling up of the sentence. A person with previous convictions simply loses the leniency shown to first offenders."

[4] This judgment, like most judgments on the sentencing of individual prisoners, was fact specific, and does not establish any general principle that a sentence of 18 months imprisonment is appropriate for a street mugging robbery, nor does it establish as a general proposition that a repeat offender should not attract a heavier sentence to protect the public and deter the offender and others. Repeated offending of the same kind should not affect the selection of the starting point for a sentence but it may will be a matter of aggravation as the English Court of Appeal held in Attorney-General’s References (No.s 4 and 7 of 2002) referred to by the Court of Appeal in this case at para [12].

[5] The parity principle invoked by the petitioner applies with particular force to the sentencing of co-offenders, but in other cases, such as the present, it only means that the sentence must not fall outside the general range of sentences for such offences. Ravula’s case does not establish the general range.

[6] The only other point taken by the petitioner was that "no personal violence was due to [his] actions because he did not punch the victim and [the co-offenders] was not jointly charged."

[7] There is no substance in this point because, as he admitted in the Magistrate’s Court, he held both the victim’s hands from behind while his accomplice did the punching, a classic joint enterprise.

[8] There has been no miscarriage of justice, and the grounds for the grant of special leave specified in s.7 (2) of the Supreme Court Act have not been established. The petition does not raise a question of general legal importance or a substantial question of principle, and it has not been shown that substantial or grave injustice may otherwise occur.

[9] The petition is dismissed.

Hon Justice Kenneth Handley
Judge of the Supreme Court

Hon Justice David Ipp
Judge of the Supreme Court

Hon Justice Ronald Sackville
Judge of the Supreme Court

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