Bonaseva v State [2015] FJSC 12; CAV0022.2014 (20 August 2015)

IN THE SUPREME COURT OF FIJI
AT SUVA
CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. CAV0022 of 2014
[On Appeal from Court of Appeal No. AAU0116 of 2013]

BETWEEN:

SOLOMONE BONASEVA
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon. Chief Justice Anthony Gates
President of the Supreme Court
The Hon. Madam Justice Chandra Ekanayake
Judge of the Supreme Court
The Hon Mr. Justice William Calanchini
Judge of the Supreme Court

Counsel : Petitioner in person
Mr. M. Delaney for the Respondent

Date of Hearing : Wednesday 7th August 2015
Date of Judgment : Thursday 20th August 2015

JUDGMENT OF THE COURT

Gates P

[1] The Petitioner pleaded guilty to aggravated robbery contrary to section 311(1)(a) of the Crimes Decree 2009 in the Labasa High Court. On 30th May 2013 he was sentenced to serve 8 years imprisonment with a non parole period of 6 years.

[2] He did not file his Notice of Appeal to the Court of Appeal until 14th October 2013. This was an appeal that was 3½ months late. Section 26(1) of the Court of Appeal Act [the Act] prescribes a 30 day appeal period within which an appeal must be lodged.

[3] The matter came before the single judge of appeal as an application for enlargement of time, in effect seeking the indulgence of the Court so as to be allowed to pursue his appeal. His appeal was against sentence only. The single judge considered the enlargement application and also whether the grounds as filed were arguable.

[4] The judge concluded they were not, and pursuant to section 35(2) of the Act said he was satisfied the sentence appeal could not possibly succeed and was therefore frivolous. His lordship refused the enlargement application, and went on to dismiss the appeal itself under section 35(2). It is against these findings that the petition is launched.

[5] In this court, the Petitioner follows closely the grounds before the single judge. His grounds are:

"That the sentence is harsh and excessive to the following:

The learned sentencing judge did not take the Appellant guilty plea as a separate mitigation factor compared to cases sentenced in High Court where the accused was found guilty, sentenced to the same length of sentence as the petitioner.

No physical injuries on victims."

Facts

[6] In his sentence judgment the High Court judge said:

"The facts of the case were that on the 30th January 2012 at around 2.30am, a group of armed men forced their way into the home of an Indo-Fijian businessman in Wainikoro, Labasa. He opened the door of his bedroom when he saw the Fijian men wearing masks running towards him. He fired a gun to scare them away but the men overpowered him, tied him up and left him on the floor. The men put a knife to the neck of the complainant's daughter in order to frighten him into giving up the gun. Apart from being masked, the intruders carried knives and rods. The men stole property belonging to the businessman to a total value of $31,630.00 and they then fled. Most of the property taken consisted of cash, cheques and jewellery. In an interview under caution this accused freely admitted his role as one of the robbers and admitted taking a chopper to the house and giving it to one of his co-accused."

No physical injuries to victims

[7] The single judge had this to say on this ground:

"The fact that the victims were not physically harmed did not mitigate the offence. The threat of violence was real. Weapons were used to commit a daring home invasion robbery at night time. If the victims were physically harmed in the course of the robbery, then the physical injuries would have operated as an aggravating factor to justify a severe sentence."

[8] The community may be relieved that no physical harm was done to the complainant and his daughter. That circumstance cannot possibly be a mitigating factor. The general circumstances were terrifying for the victims when masked men entered their home in the middle of the night. The victims would not have known what was to be their fate. A group of masked men with a knife, chopper, and other weapons entering their home, and the knife held at the daughter's throat, are events that it can properly be assumed will not fade easily from their memories.

[9] As the charge was framed in the information, the circumstances of aggravation selected was "being in company" section 311(1)(a). In the Magistrate's Court the charge was framed including both limbs of sub-section (1). This charge included the allegation of having offensive weapons with him. This was a joint enterprise and if one or two had weapons all could be charged with that circumstance of aggravation.

[10] Section 311 reads as follows:

(1) A person commits an indictable offence if he or she –

• (a) commits a robbery in company with one or more other persons; or
  
• (b) commits a robbery and, at the time of the robbery has an offensive weapon with him or her.
  

Penalty – Imprisonment for 20 years.

(2) For the purposes of this Decree, an offence against sub-section (1) is to be known as the offence of aggravated robbery.

(3) In this section –

"offensive weapon" includes –

(a) an article made or adapted for use for causing injury to, or incapacitating, a person; or

(b) an article where the person who has the article intends, or threatens to use, the article to cause injury to, or to incapacitate, another person.

[11] If both circumstances of aggravation existed they could have been charged in the one charge. Sub-section (2) speaks of an offence rather than offences. As far as sentencing is concerned the aggravating factor included in the charge cannot form a further circumstance of aggravation enhancing sentence. But it may mean the sentencer will commence his or her starting point higher up the range of sentences within the tariff for the aggravated offence.

[12] On these facts both limbs should have been charged in the information filed with the High Court. No duplicity is involved and subsection (2) makes clear it is an offence and not two separate offences. The particulars of the charge would then have read:

Statement of Offence

AGGRAVATED ROBBERY: Contrary to section 311(1)(a) and (b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

SAMUELA BAVORO, TEVITA RAIWALUI, MELI ROKOBIU, SOLOMONE BONASEVA and RAJU NAND, on the 30th day of January 2012, at Labasa in the Northern Division, being in company, and at the time of the robbery, had offensive weapons with them, robbed Bhan Pratap of F$22,552.55, USD$41.00 and AUD$185.00 in cash, ANZ cheques totaling $4,165.00, assorted jewellery valued at $4,567.00, a National brand torch valued at $79.00, and a landline receiver valued at $5.00, all of which were the property of the said Bhan Pratap.

[13] It has been noticed by the appellate courts that occasionally insufficient attention is directed to the framing of particulars in the information. Though there was nothing misleading here, it is an important requirement that the Accused should have allegations that are brought clearly before him.

[14] If robbery simpliciter [section 310] had been charged the sentencing court could not have taken into account the circumstances of aggravation of "being in company and being armed": The Queen v De Simoni (1981) 147 CLR 383 per Gibbs CJ at p389. In a charge of common assault, the sentencer cannot take into account the injuries caused since it would have been possible to have charged the more serious charge of assault causing actual bodily harm [section 275 Crimes Decree]. When the prosecution accepts a plea to theft from the person, originally charging robbery, the sentencing judge cannot take into account the fact that the offender had a knife and frightened his victim: R v Young [2003] NSWCCA 276.

[15] However in the instant case the 2nd circumstance of aggravation [being armed] adds no further penalty. In those circumstances if it had been so charged in the information it might have led the sentencer to commence the sentence higher up the scale. "Being armed" was not charged, but if charged would have attracted no additional penalty. It is therefore possible for the sentencer to take "being armed" into consideration as an aggravating factor. Such consideration would not offend the De Simoni principle. The sentencing judge was correct to regard the use of weapons as an aggravating factor.

Guilty plea discount and Disparity
[16] The Petitioner's mitigation was carefully weighed by the sentencing judge in the High Court. He said the Accused was 39 years old and at the time of arrest was employed as a civil servant. He had completed two thirds of a Bachelor's degree in Economics at the University of the South Pacific. He was said to be single and resided with his 64 year old mother and a sister and her family. He had said he was the sole breadwinner of that family unit and it was that financial responsibility that led him to commit the offence.

[17] His lordship added:

"He was also under heavy psychological pressure from a romantic relationship breakdown for which he had been undergoing counseling. He has no record of offending in the last 10 years and is to be regarded as coming before the Court with a clear record. The property stolen was recovered."

[18] In the plea, his lordship said:

"Of course the greatest mitigating feature in the accused's favour is his plea of guilty, although not at an early opportunity, which shows his remorse and which greatly saves the Court's time."

[19] The judge commenced his sentence calculation at 10 years and added 3 years for the aggravating factors equalling 13 years imprisonment. He deducted 2 years for the mitigation and another 3 years for time spent in custody and the late plea.

[20] Sentencing is not an exact science: Maciu Koroicakau v The State [2005] FJSC 5; CAV0006.2005S (4 May 2006). It is an exercise of discretion and it must remain a practiced art. The judge might have granted a discount appropriate to the mitigating factors after allowing such discount as appropriate for the guilty plea.

[21] In this case a generous discount was accorded the comparatively late plea, as was observed correctly by the single judge. The order in which the discounts had been given has not affected the overall appropriateness of the final figure of 8 years imprisonment: Maciu Koroicakau (supra). It must be remembered it is the final sentence that is of importance.

[22] Other Accused in different cases also cannot make for a compelling argument that there has been disparity of sentence such that an appellate court should interfere. This case does not come into the category of giving offence to "right thinking members of the public" Fawcett (1983) 5 Cr. App. R(s) 158 "that something had gone wrong with the administration of justice." In Seremaia Naicori v The State Cr. App. No. AAU0025/06 9th March 2007 the Court of Appeal intervened since the appellant's sentences were twice as long as those of their co-Accused. This was not the case here. The variations were a matter of a few months. Nothing has been raised to signal any miscarriage of sentencing. The disparity argument has not begun to be made out, and the ground fails.

[23] Not only did Goundar J in Manoa [2010] FJHC 409 indicate that the reductions in maximum penalty in the Crimes Decree from life imprisonment to 20 years did not herald a withdrawal of the then tariff [8-14 years], indeed subsequent decisions of this court have increased that tariff: Livai Nawalu v The State Crim. App. No. CAV0012/2012 28th August 2013.

[24] At para [27] of that judgment I had occasion to say:

"So far as the head sentence is concerned, the court finds 13 years to be within the range set by recent authority for serious violent crime such as robbery with violence. Here the outstanding factors triggering a high penalty in the range 10-16 years were the spate of offending, the gravity of the anti-social behavior with its menace to persons and property, the invasion of home and privacy, the violence proffered, and the need for very strong disapproval of such behavior. With this type of offending, personal mitigation of the kind raised by the Petitioner, that he is married and now has a small child, count for little."

[25] More recently in Wallace Wise v The State CAV0004/2015, 24th April 2015 a case with some similarities I said:

"[25] The matter does not end there. We believe that offences of this nature should fall within the range of 8-16 years imprisonment. Each case will depend on its own peculiar facts. But this is not simply a case of robbery, but one of aggravated robbery. The circumstances charged are either that the robbery was committed in company with one or more other persons, sometime in a gang, or where the robbers carry out their crime when they have a weapon with them.

[26] Sentences will be enhanced where additional aggravating factors are also present. Examples would be:

(i) offence committed during a home invasion.

(ii) in the middle of the night when victims might be at home asleep.

(iii) carried out with premeditation, or some planning.

(iv) committed with frightening circumstances, such as the smashing of windows, damage to the house or property, or the robbers being masked.

(v) the weapons in their possession were used and inflicted injuries to the occupants or anyone else in their way.

(vi) injuries were caused which required hospital treatment, stitching and the like, or which come close to being serious as here where the knife entered the skin very close to the eye.

(vii) the victims frightened were elderly or vulnerable persons such as small children.

[27] It is our duty to make clear these type of offences will be severely disapproved by the courts and be met with appropriately heavy terms of imprisonment. It is a fundamental requirement of a harmonious civilized and secure society that its inhabitants can sleep safely in their beds without fear of armed and violent intruders."

[26] Undoubtedly the Petitioner's sentence taken overall was on the lenient side. It is unfortunate that a person of promise like the Petitioner, having kept out of trouble for 10 years, and having applied himself usefully and meritoriously almost to the completion of an university degree, should fall back again to his old ways. But protection of the public from violent home invasions perpetrated by armed gangs is the paramount consideration of the courts. It takes precedence over much of the mitigating arguments raised for leniency by the Accused.

Conclusion
[27] The grounds challenging the sentence cannot succeed for the reasons set out here and which were largely referred to by the single judge whose decision is impugned.

Ekanayake JA
I agree with the reasoning and the orders proposed in the above judgment.
Calanchini JA
I agree with the reasoning and the conclusions of Gates P.

Gates P
[28] In the result:

1. Special leave to appeal is refused and the petition is dismissed.
2. The decision of the single judge of the Court of Appeal refusing enlargement of time and dismissing the appeal pursuant to section 35(2), is affirmed.
3. The sentence of the High Court is affirmed.
   

.................................................
Hon. Chief Justice Anthony Gates
President of the Supreme Court

................................................
Hon. Madam Justice Chandra Ekanayake
Judge of the Supreme Court

................................................
Hon. Mr. Justice William Calanchini
Judge of the Supreme Court

Solicitors for the Petitioner: In Person
Solicitors for the Respondent: Office of the Director of Public Prosecutions

uln

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