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Supreme Court of Fiji |
IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA
Petition for Special Leave to Appeal CAV0006/2010
[Court of Appeal AAU0022/08]
BETWEEN:
JOELI VULAWALU
Petitioner
AND:
THE STATE
Respondent
Coram: The Hon Mr Justice Anthony Gates
President of the Supreme Court
The Hon Mr Justice Saleem Marsoof
Justice of Appeal of the Supreme Court
The Hon Mr Justice Sathya Hettige
Justice of Appeal of the Supreme Court
Hearing: Tuesday 29th March 2011
Counsel: Petitioner in Person
Ms Seini Puamau
Date of Judgment: 8th April 2011
JUDGMENT OF THE COURT
[1] The Petitioner seeks special leave to appeal against sentence. The two chief grounds he urges are that the Court of Appeal did not pay sufficient regard to the totality principle and secondly the court did not distinguish the Petitioner's part from that of the other participants and give sufficient discount for that lesser role. He says he personally did not act with violence towards the victims, and was merely the driver in both robberies.
[2] There were two cases in the Magistrates Court, separate in time and circumstance. After pleas of guilty, albeit after the commencement of evidence in one of the cases, sentence was passed on 7th September 2007. These sentences were as the learned magistrate set out as follows:
"Case No. 984/07
Count 1: Robbery with Violence: 6 years imprisonment.
Count 2: Unlawful use of Motor Vehicle: 4 months imprisonment.
These two sentences be served concurrently.
Total = 6 years imprisonment
Case No. 752/07
Robbery with Violence: 4 years imprisonment.
All these i.e. 6 years and 4 years to be served consecutively.
Total = 10 years imprisonment."
[3] The Petitioner appealed against both conviction and sentence to the High Court. On 8th February 2008 the High Court dismissed the appeal against conviction but allowed the appeal against sentence. It reduced the total sentence of imprisonment from 10 years to 7 years.
[4] The Petitioner appealed further to the Court of Appeal. Leave to appeal was refused by Hickie JA as the single judge on the ground that no error of law in the imposition of the sentences had been shown. Section 22(1A) of the Court of Appeal Act prohibited appeals against sentence save where it could be shown that: (a) "the sentence was an unlawful one or was passed in consequence of an error of law; or (b) that the High Court imposed an immediate custodial sentence in substitution for a non-custodial sentence."
[5] We are concerned here with paragraph (a) of section 22(1A).
[6] The Petitioner raised two arguments in the Court of Appeal. First that the totality principle had not been correctly applied and second that the cumulative sentence of 7 years was harsh and excessive in view of the Petitioner's lesser role in these crimes. However a ground dealing with the quantum of a sentence is unlikely to raise "unlawfulness" or "error of law". But breach of the totality principle could amount to an error of law.
[7] As the Court of Appeal correctly recognised the facts admitted in these robberies amounted in each case to joint enterprises. The court warned the Petitioner if he went on with his appeal against sentence, the sentence could be enhanced. However he wanted to proceed and therefore he was heard on the question of enhancement. The court ordered enhancement and restored the Magistrates Court original sentence undisturbed, that is 6 years and 4 years consecutive respectively, making a total of 10 years.
[8] In Suva Magistrates Court Case 984/07, the Petitioner was charged with one other of robbing an Australian High Commission official at his residence in Lami and of unlawfully using the victim's motor vehicle.
[9] On 3rd September 2007 the Petitioner pleaded guilty to both counts. The facts were handed up. The property taken from the victim amounting in all to $1,460 was never recovered. The aggravating factors were that this offence was committed at night, whilst the victim was at his house with his family including two children aged 9 and 4 years, and that the Petitioner was part of a group of 10 masked men who had entered the house under somewhat frightening circumstances. Finally they assaulted the victim causing injuries to him necessitating hospitalisation for a few days. One of them had stabbed the victim several times with a screw driver.
[10] In Suva Magistrates Court Case No. 752/05 the complainant was at home in Vatuwaqa at 2 in the morning with his family when 6 masked men with cane knives, stones and an iron rod entered his compound. The robbers used an iron cutter to cut the padlock. The tube light in the porch was taken out. The windows were then smashed and the masked men entered the house. The house was ransacked. Money was demanded. The owner's 7 year old daughter's gold chain was snatched from her. There was some manhandling of the 77 year old grandmother also. Jewellery, currency and a mobile phone were taken.
[11] The Court of Appeal said there was no physical violence proffered to the occupants on this occasion. Nonetheless the events as related above would have considerably alarmed the complainant and his family. Again there were aggravating factors in this being a home invasion at night, a robbery committed by the Petitioner in company, the men being masked and armed, and the frightening circumstances of the windows being smashed with the family inside together and in the presence of the elderly grandmother and child of 7.
[12] In considering sentence, the Magistrate had approached his task taking each robbery as a separate matter. The offences were not part of a string of robberies but there were two of them committed on different dates. He accordingly ordered the sentences to be served consecutively, making a total sentence to be served of 10 years imprisonment.
[13] The Petitioner informed the court he was to drive the vehicles that were stolen from each premises. He admitted he went into the Lami home as part of the masked group of 10. It was obvious that he knew force would be used if anybody got in the way of the robbers' intentions. The complainant did and thus his hand was injured when he tried to prevent the robbers from entering his house. The circumstances of the robbery were such that all who entered must take responsibility and were criminally liable for what they knew might arise, as indeed it did.
[14] There is less clarity on the role played by the Petitioner in the second matter, the robbery at Vatuwaqa. Again the Petitioner said he was there to drive a vehicle. By doing so he assisted at the scene of the crime and took part in the robbery. Little if any discount can be given for such a role, which is akin to that of the driver of a getaway car in a bank robbery. His role was vital to the success of both crimes committed.
[15] In the course of a careful sentencing judgment the learned magistrate canvassed and applied the correct principles in arriving at the sentences. There was some mitigation put to the court. His wife had left him with 2 children to look after. However he could receive no discount for good character since he had a criminal history with one previous robbery matter.
[16] In the High Court the judge stated that he found the Magistrate's sentence principled and correct. He then went on to say that "on the totality of the sentence and given the role played by the appellant I would hold that 7 years would be fairer on the facts of the cases here." The judge referred to the fact that the Petitioner had said he was "the spotter and the driver." It had been explained to the Petitioner by the Magistrate that he was as much responsible as the others who had actually entered the premises to execute the robbery.
[17] The High Court ordered that the sentence was to be "varied from a total of 10 years imprisonment to 7 years imprisonment." The court did not apportion that reduction between the two leading counts each charging robbery with violence. This was not therefore well expressed for one was a sentence of 6 years and the other of 4 years. Such reduction should have been apportioned, so that the individual sentences on the warrants of imprisonment, as well as on the record would be accurate.
[18] The High Court sentence was reversed by the Court of Appeal on 11th June 2010. The court restored the sentences of the learned magistrate, with the original terms of imprisonment remaining consecutive to each other.
[19] There can be no challenge to the correctness of the magistrate in ordering consecutive sentences for the two robberies. They were wholly different incidents of robbery with violence and in such circumstances the terms of imprisonment should be made consecutive to each other: Joji Waqasaqa v The State Cr. App. No. CAV0009.05S, 8th June 2006.
Totality of Sentence
[20] The Supreme Court in Waqasaqa set out the procedure for a sentencing court after it has set the appropriate sentence within the range and having taking into account all of the aggravating and mitigating circumstances. At para [34] the court went on:
"[34] Of course, the sentencing judge or magistrate is always required to consider the totality of the aggregate sentence in order to ensure that it is just and appropriate. Sentencing is never a mere matter of arithmetic. The court must always step back and take a last look at the total just to see if it looks wrong (R v Bradley [1979] 1 NZLR 262, Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, Wong Kam Hong v. The State, Criminal Appeal No. CAV0002 of 2003S, Supreme Court, 23 October 2003).
[35] In Mill, Wilson, Deane, Dawson, Toohey and Gaudron JJ said (at 63):
"Where the [totality] principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred." "
[21] In these proceedings, the Court of Appeal had referred to its decision in Philip Fong Toy v The State AAU0099/08 and at para [12] said:
"The effect of the totality principle is to require a sentencer when ordering a series of sentences to run consecutively to consider whether the total sentence is too much and will have a crushing effect on the offender. If a sentence concludes that making a series of sentences cumulative will have a crushing effect on the offender, then the sentences should be made concurrent. That is how the totality principle operates."
[22] In the instant case, both of the robberies were terrifying events for the victims. These were serious offences involving home invasion at night, committed by a group of armed masked men, with the smashing of glass, and in one of them, injuries inflicted on the complainant. Sentences of 6 years and 4 years were not excessive, and the ordering of consecutive service of these terms was wholly correct.
[23] A consideration of the totality principle here does not result in the need for further reduction of the effective overall term. The term was, as required, just and appropriate for the total criminality involved Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.
[24] We conclude that the sentences were not unlawful nor were they passed in consequence of an error of law.
[25] The Petitioner has not met the threshold requirements for the grant of special leave pursuant to section 7(2) of the Supreme Court Act. For that reason special leave is refused.
Hon Justice Anthony Gates
President of the Supreme Court
Hon Justice Saleem Marsoof
Justice of Appeal of the Supreme Court
Hon Justice Sathya Hettige
Justice of Appeal of the Supreme Court
Solicitors:
Petitioner in Person
Office of the Director of Public Prosecutions, Suva for the Respondent
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