State v Tawake [2022] FJSC 22; CAV0025.2019 (28 April 2022)

[2] I have perused the judgment of Keith J in draft and I agree with his reasoning and conclusions. I agree that the grant of leave to appeal in this case is justified, but having considered the matter carefully, that the appeal ought to be dismissed.

[3] The offence of robbery can take many forms. They can range from someone coming up to you in the street and intimidating you into handing over your mobile phone. At the other end of the spectrum, you can have a gang of men armed with knives and baseball bats breaking into your home while you are asleep, tying you up and ransacking your home. The law recognizes that robbery is an offence with very different levels of gravity, and it distinguishes between robbery and what it calls aggravated robbery. A person commits the offence of aggravated robbery either when they commit the robbery with someone else or when they commit the robbery and have an offensive weapon with them at the time.

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[4] In Wise v The State [2015] FJSC 7, the Supreme Court laid down the tariff for offences of aggravated robbery. The sentencing range was to be 8-16 years’ imprisonment. But did that sentencing range apply to robberies, though aggravated robberies, which were at a really low end of culpability? Many judges thought it did. But some were uncomfortable with that, and as we shall see, that has given rise to an unacceptable disparity between the sentences passed by different judges on different defendants for offences of roughly the same level of gravity. The State wants this case to be the vehicle for creating greater consistency in the sentencing of these offences in the future.

[5] The respondent is Eparama Tawake. I intend no discourtesy to him if I call him Tawake for convenience from now on. He was charged with aggravated robbery contrary to sections 311(1)(a) and (b) of the Crimes Act 2009. Section 311(1)(a) makes the robbery an aggravated one if the offender was “in company with one or more other persons” at the time of the robbery, and section 311(1)(b) makes the robbery an aggravated one if the offender “has an offensive weapon with him or her” at the time of the robbery. The robbery in this case was what is colloquially called a “street mugging”. Tawake was tried in Suva Magistrates’ Court acting under its extended jurisdiction. He pleaded not guilty. On 22 December 2016 he was convicted, and on 6 January 2017 he was sentenced to 9½ years’ imprisonment, with a non-parole period of 7 years. He appealed against his conviction and sentence to the Court of Appeal. Leave to appeal both his conviction and sentence was granted. In due course on 3 October 2019 the Court of Appeal (Chandra, Basnayake and Guneratne JJA) dismissed the appeal against conviction, but allowed the appeal against sentence. It quashed the sentence imposed by the magistrate, and substituted for it a sentence of 3 years’ and 2 months’ imprisonment, with a non-parole period of 2 years and 2 months. The very significant difference between the sentence imposed at first instance and that imposed on appeal suggests that something went wrong somewhere.

[6] The State now applies for leave to appeal to the Supreme Court. It asks the Court to consider quashing the sentence imposed by the Court of Appeal and to substitute for it such other sentence which the Court thinks appropriate. The State argues that the new sentence should be informed by a new guideline which the State asks the Court to issue for “street muggings”. A number of appeals are awaiting the outcome of this case.

[7] The facts can be shortly stated. At about 4.30 pm on 12 December 2014 Tawake’s victim was walking to his home in Vatuwaqa when Tawake and another man called him over. He knew Tawake as they lived near each other. Tawake and the other man asked him for money. He told them that he did not have any, and that was when Tawake used a knife on him and the other man hit him with an iron rod. It is unclear how Tawake was supposed to have used the knife on him, but looking at the magistrates’ notes of the evidence, it looks as if the victim was saying that Tawake used the knife on his hand and the other man hit him with the rod on his back. Tawake took $20 from him and then ran off. This was only a few weeks after Tawake’s 18^th birthday. He had no previous convictions. There is nothing in either the Record of the High Court or the Record of the Supreme Court which tells us anything about his background – the home he came from, his education or his employment history. He had been in custody on remand awaiting trial for a total of 152 days prior to sentence.

[8] Since Tawake had been convicted of an aggravated robbery, the magistrate followed the guideline laid down in Wise, which he thought applied to all offences of aggravated robbery. He took 12 years’ imprisonment as his starting point, but did not think that there were any factors which justified an enhancement of that starting point. For example, there had been no medical or other evidence that his victim had actually been injured. He discounted the sentence which he would otherwise have passed by two years to reflect Tawake’s youth at the time of the offence and the fact that he had not been in trouble before, and he further reduced the sentence by 6 months to reflect the period during which Tawake had been in custody on remand awaiting trial. That brought the sentence down to 9½ years’ imprisonment.

[9] The Court of Appeal did not think that the guideline of 8-16 years’ imprisonment laid down in Wise was the appropriate guideline for this case. It thought that the guideline in Wise applied to cases in which the robbery took the form of what Wise described as “home invasions”. This case was far away from that in terms of gravity. Indeed, in Raqauqau v The State [2008] FJCA 34, the Court of Appeal had applied the approach of the Court of Appeal in England to “street muggings” which had identified a sentencing range of between 18 months’ and 5 years’ imprisonment. As I have said, the Court of Appeal reduced Tawake’s sentence to one of 3 years’ and 2 months’ imprisonment. The Court of Appeal did not identify the route by which it reached that figure.

[10] Wise was a case of a “home invasion”. Three masked intruders broke into the home of a man, his wife and daughter at night. The intruders were armed with a knife and an iron bar. The occupants woke up, the man was punched, his wife was threatened with the knife, and in the skirmish which ensued the man received a number of injuries including lacerations from the use of the knife. The intruders got away with modest amounts of jewellery and cash. Wise was sentenced to 7 years’ imprisonment for aggravated robbery following a late plea of guilty. Gates P, in a judgment with which the other members of the Supreme Court agreed, said at para 3 that the sentences passed on Wise and his co-defendant “appear to be lenient”. The Supreme Court did not alter the sentence – probably because it thought that the new guideline it was about to issue should not apply to offences committed before the guideline was issued – but Gates P thought it appropriate to say something about “offences of this nature”:

“[25] 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, sometimes 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:

(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 the knife entered the skin very close to the eye.

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

[11] The critical question is whether these important observations were intended to apply to all cases of aggravated robbery, or just to those cases of aggravated robbery which amounted to home invasions. What did the words “offences of this nature” used by Gates P refer to? All aggravated robberies or just aggravated robberies involving home invasions? Dr Andrew Jack for the State argues that the Court was referring to all cases of aggravated robbery. There is something to be said in support of that argument. In para 26(i) a robbery committed during a home invasion is given as an example of those cases where the sentence will be enhanced within the sentencing range. If the Court was intending to apply the sentencing range to robberies involving home invasions only, there would have been no need to include such robberies in the list of examples of cases requiring an enhancement of sentence.

[12] However, there are, in my opinion, a number of reasons why the Court could not have intended the new sentencing range to apply to all offences of aggravated robbery. First, the particular case with which the Court was concerned involved a home invasion. The trial judge had passed what the Court thought had been a particularly lenient sentence. It wanted to put that right. It could do that by identifying a new sentencing range for aggravated robberies involving a home invasion. It did not need to identify a new sentencing range for all aggravated robberies.

[13] Secondly, all of the examples it gave of instances when a sentence within the new sentencing range should be enhanced related to aggravated robberies involving home invasions. The examples in paras 26(ii), (iv) and (v) could not refer to any other types of aggravated robberies. And although the examples in paras 26(iii), (vi) and (vii) could refer to other types of aggravated robberies, the tenor of para 26 when taken as a whole suggests that it was aggravated robberies involving home invasions which the Court was addressing.

[14] Thirdly, many aggravated robberies not involving home invasions do not justify a starting point in the 8-16 years’ imprisonment sentencing range identified in Wise. Street muggings in which no injuries were caused but which amounted to aggravated robberies because there was more than one offender or because the offender had a weapon will rarely, if ever, justify a starting point of at least 8 years’ imprisonment, let alone one higher up the range. That strongly suggests that whatever aggravated robberies were intended to be covered by Wise, Wise was not intended to apply to street muggings.

“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.” (Emphasis provided)

This passage really gives the game away. It is unquestionably referring only to aggravated robberies involving home invasions. Why would Gates P have included such a passage if the Court was intending the new sentencing range to apply to all aggravated robberies?

[16] The judgment in Wise was handed down on 24 April 2015. Since then sentencing judges have had to apply it. There has been no problem in its application to aggravated robberies involving home invasions. Judges have, for the most part, been applying Wise conscientiously to such cases. The problem has arisen with cases of aggravated robberies not involving home invasions. Some judges take the view that Wise does not apply to such cases, and those judges did not feel constrained to pass sentences within the new sentencing range identified in Wise. Other judges think that Wise applies to all cases of aggravated robbery, and those judges regard themselves as obliged to pass sentences within the new sentencing range identified in Wise. Tawake’s own case is a classic example of this dilemma. Though the case was not a home invasion case, Tawake was sentenced by a magistrate who felt obliged to sentence him within the range identified in Wise. And it was because it was not a home invasion case that the Court of Appeal substituted a sentence way below the lower end of the range identified in Wise.

[17] All of this has resulted in a wide and concerning disparity in sentences passed on persons convicted of aggravated robberies not involving home invasions. The Office of the Director of Public Prosecutions has helpfully illustrated that by providing the Court with a chart setting out nine cases heard in 2019 or early 2020 in which offenders convicted of aggravated robbery had to be sentenced for opportunistic, low value “street muggings”. In three instances, the sentences were as much as 9 years’ imprisonment. In the other six cases, they were sentenced to terms of 4 years’ imprisonment or less, including two cases in which the sentences of imprisonment were suspended. I set out the chart below:

HAC 128/16	HAC 117/18	HAC 115/18	HAC 419/18	HAC 401/18	HAC 271/17	HAC 28/18	HAC 109/18	HAC 299/18
26/2/2019	28/3/2019	9/5/2019	10/5/2019	24/5/2019	30/8/2019	10/9/2019	26/11/2019	31/1/2020
$299.00	$119.00	$399.00	$130.00	$299.00	$400.00	$485.00	$760.00	$80.00
Suspended	9 years	9 years	Suspended	6 months	Suspended	9 years	3 years	4 years

Of course, the differences in sentence were in part attributable to the gravity of each offence (for example, whether any of the victims were injured or were particularly vulnerable), whether the offender pleaded guilty or not guilty, the offender’s age and offending history, and the time spent in custody awaiting trial. But it is plain nevertheless that the judges took different views about the applicability of Wise.

[18] This judgment will have done much to reduce the chances of such disparity occurring again. As a result of this judgment, judges will know that when they come to sentence an offender for aggravated robbery not involving a home invasion, they should not take the sentencing range identified in Wise as their guide.

[19] So if Wise does not apply to street muggings, what should the sentencing range for “street muggings” be? The State asks the Court to issue a guideline judgment on sentencing for such cases by exercising its power under section 6 of the Sentencing and Penalties Act 2009, which provides that “the Supreme Court may, on its own initiative or on an application made by a party to the appeal, consider whether to give a guideline judgment, or to review a guideline judgment that has already been given”. Tawake’s counsel, Mr Michael Fesaitu, agrees that there is a need for a guideline judgment for the sentencing of “street muggings”, but he contends that there is, in effect, one already in place.

[20] There are unquestionably a number of authorities addressing the appropriate sentence in cases of “street mugging”. I have already referred to Raqauqau. In that case, the offender was charged with robbery with violence contrary to section 293(1)(b) of the Penal Code. That would now be aggravated robbery as he was with an accomplice at the time of the robbery. They grabbed a young man aged 18 and punched him, making off with $71 in cash. No weapon was used or displayed. The offender pleaded guilty, and the Court of Appeal reduced his sentence from 5 years’ imprisonment to 4. The judgment of the Court included the following passages:

“[11] Robbery with violence is considered a serious offence because the maximum penalty prescribed for this offence is life imprisonment. The offence of robbery is so prevalent in the community that in Basa v The State (Criminal Appeal No AAU0024 of 2005) (24 March 2006) the Court pointed out that the levels of sentences in robbery cases should be based on English authorities rather than those of New Zealand, as had been the previous practice, because the sentence provided in [the] Penal Code is similar to that in English legislation. In England the sentencing range depends on the forms or categories of robbery.

[12] The leading English authority on the sentencing principles and starting points in cases of street robbery or mugging is the case of Attorney General’s References (Nos 4 and 7 of 2002) (Lobban, Sawyers and James) (the so-called ‘mobile phones’ judgment). The particular offences dealt in the judgment were characterized by serious threats of violence and by the use of weapons to intimidate; it was the element of violence in the course of robbery, rather than the simple theft of mobile telephones, that justified the severity of the sentences. The court said that, irrespective of the offender’s age and previous record, a custodial sentence would be the court’s only option for this type of offence unless there were exceptional circumstances, and further where the maximum penalty was life imprisonment:

The Court applied these principles in reducing Raqauqau’s sentence to 4 years’ imprisonment.

[21] Raqauqau has been applied and followed in many cases since then. By way of example only, Goundar J applied the sentencing range of 18 months’ to 5 yeas’ imprisonment in the High Court in The State v Vatunicoko [2018] FJHC 885, and the Court of Appeal followed and applied it in The State v Koi [2018] FJCA 127 – as, of course, the Court of Appeal did in the present case. So with an apparently established sentencing range already existing for “street muggings”, is there a need for a guideline judgment now – now that, as a result of this judgment, courts will no longer fall into the error of applying the sentencing range in Wise? At first blush, the answer is no, as the worrying disparity in sentence as a result of some judges applying the sentencing range in Wise to “street muggings” and with others not doing so should no longer arise.

[22] However, there are good reasons, in my view, for not regarding Raqauqau as a definitive guideline for “street muggings”. First, as the Court of Appeal noted in Raqauqau, the maximum sentence for robbery with violence contrary to section 293 of the Penal Code was life imprisonment. The maximum sentence for aggravated robbery contrary to section 311 of the Crimes Act 2009 is 20 years’ imprisonment. Secondly, Raqauqau himself appealed to the Supreme Court against his sentence: see Raqauqau v The State [2009] FJSC 2. At para 4, the Court said that the Court of Appeal’s judgment “was fact specific, and does not establish any general principle that a sentence of 18 months imprisonment is appropriate for a street mugging robbery”. But thirdly, and most importantly of all, “street muggings” can take many forms. There will be different degrees of culpability and different levels of harm. Sentencing courts need, in my opinion, some guidance as to how those differing features of an individual case should be reflected in sentence. A sentencing range of 18 months’ to 5 years’ imprisonment, with no other guidance, can itself give rise to the risk of an undesirable disparity in sentencing. A more nuanced approach is necessary.

[23] The State suggests that the best way for the Court to achieve consistency in sentencing for “street muggings” is to adopt the methodology of the Definitive Guideline on Robbery issued by the Sentencing Council in England. That Guideline (as with the case of other definitive guidelines issued by the Sentencing Council) classifies cases of robbery by reference to two important factors: the degree of the offender’s culpability and the level of harm suffered by the offender’s victim. There are three degrees of culpability and three levels of harm. The Guideline identifies a sentencing range for each class of case, and a starting point within that range.

[24] The English guideline covers three different types of robbery: “home invasions”, professionally planned commercial robberies, and street and less sophisticated commercial robberies. Our focus in this case is on the last type. Even then, though, the English framework would require some refinement in Fiji, because in England there is a single offence of robbery, whereas Fiji has two offences of robbery: robbery contrary to section 310 of the Crimes Act and aggravated robbery contrary to section 311 of the Crimes Act. Moreover, as we have seen, the offence of aggravated robbery takes two forms: where the offender “was in company with one or more other persons” at the time of the robbery, and where the offender “has an offensive weapon with him or her” at the time of the robbery. Such guidance as we give has to reflect these differences.

[25] For my part, I think that this framework, suitably adapted to meet the needs of Fiji, should be adopted. There is no need to identify different levels of culpability because the level of culpability is reflected in the nature of the offence, and if the offence is one of aggravated robbery, which of the forms of aggravated robbery the offence took. When it comes to the level of harm suffered by the victim, there should be three different levels. The harm should be characterized as high in those cases where serious physical or psychological harm (or both) has been suffered by the victim. The harm should be characterized as low in those cases where no or only minimal physical or psychological harm was suffered by the victim. The harm should be characterized as medium in those cases in which, in the judge’s opinion, the harm falls between high and low.

[26] Once the court has identified the level of harm suffered by the victim, the court should use the corresponding starting point in the following table to reach a sentence within the appropriate sentencing range. The starting point will apply to all offenders whether they pleaded guilty or not guilty and irrespective of previous convictions:

	ROBBERY (OFFENDER ALONE AND WITHOUT A WEAPON)	AGGRAVATED ROBBERY (OFFENDER EITHER WITH ANOTHER OR WITH A WEAPON)	AGGRAVATED ROBBERY (OFFENDER WITH ANOTHER AND WITH A WEAPON)
HIGH	Starting point: 5 years imprisonment Sentencing range: 3-7 years imprisonment	Starting point: 7 years imprisonment Sentencing range: 5-9 years imprisonment	Starting point: 9 years imprisonment Sentencing range: 6-12 years imprisonment
MEDIUM	Starting point: 3 years imprisonment Sentencing range: 1-5 years imprisonment	Starting point: 5 years imprisonment Sentencing range: 3-7 years imprisonment	Starting point: 7 years imprisonment Sentencing range: 5-9 years imprisonment
LOW	Starting point: 18 months imprisonment Sentencing range: 6 months-3 years imprisonment	Starting point: 3 years imprisonment Sentencing range: 1-5 years imprisonment	Starting point: 5 years imprisonment Sentencing range: 3-7 years imprisonment

[27] Having identified the initial starting point for sentence, the court must then decide where within the sentencing range the sentence should be, adjusting the starting point upwards for aggravating factors and downward for mitigating ones. What follows is not an exhaustive list of aggravating factors, but these may be common ones:

[28] Again, what follows is not an exhaustive list of mitigating factors, but these may be common ones:

[29] Having decided on the appropriate sentence in this way, the Court should then reduce the sentence by such amount as is appropriate – first for a plea of guilty and then for the time the offender spent in custody on remand awaiting trial and sentence. If judges take these steps in the order I have identified, it is to be hoped that sentences will be more likely to fit the crime, and that undesirable disparities in sentences will be avoided.

[30] This methodology is new to Fiji. In the recent past the higher courts have usually only identified the appropriate sentencing range for offences. They have only infrequently in recent times assisted judges by identifying where in the sentencing range the judge should start. That has caused difficulties identified by the Supreme Court on a number of occasions: see, for example, Seninolokula v The State [2018] FJSC 5 at paras 19 and 20 and Kumar v The State [2018] FJSC 30 at paras 55-58. If this methodology is used, that problem is avoided. Indeed, there is, in my opinion, no reason why this methodology should be limited to “street muggings”, and it may be that thought will be given in the appropriate quarters to find cases to bring to the Court of Appeal for this methodology to be considered for sentencing for other offences.

[31] Tawake had a weapon with him and was with another man, but there was no evidence that his victim had been injured. This was therefore a case for a starting point of 5 years’ imprisonment with a sentencing range of 3-7 years imprisonment. The fact that he had a knife rather than some less lethal weapon was an aggravating factor, but the mitigating factors were the fact that only minimal force was used, there was nothing to suggest that the offence was committed otherwise than on the spur of the moment, he was young and he had no previous convictions. In my opinion, taking all these factors into account, a sentence between 3½ and 4 years’ imprisonment would have been appropriate. However, he had to be given credit for the 5 months he spent on remand in custody awaiting trial. It follows that the sentence of 3 years’ and 2 months’ imprisonment which the Court of Appeal substituted for the 9½ years’ imprisonment passed by the magistrate could not be said to be either inadequate or excessive.

[32] By considering whether Tawake’s sentence was in accordance with the new guideline for “street muggings”, I should not be thought to be contributing to the debate of the applicability of new guidelines to offenders whose offences were committed before the new guideline was announced. That debate is continuing in the reported cases. It just happens that I think that the sentence substituted by the Court of Appeal in this case was unimpeachable.

[33] There was one topic, unrelated to the issues raised on the appeal, which we drew the parties’ attention to. Tawake was tried in the magistrates’ court acting under its extended jurisdiction. At first blush, any appeal against his conviction or sentence should have been made to the High Court, not the Court of Appeal. We have not addressed the question of the venue for Tawake’s appeal any further as understandably neither party were in a position to address us on the topic. But we flag the issue up now in case it arises again. If such appeals are regularly being made to the Court of Appeal, the Court of Appeal needs to address the question as to whether that is appropriate.

[34] For these reasons, I would give the State leave to appeal to the Supreme Court. The appeal has involved both questions of general legal importance and substantial questions of principle affecting the administration of criminal justice. They are what the correct scope of the Supreme Court’s decision in Wise was, whether a new sentencing guideline for “street muggings” should be issued, and what the appropriate methodology for such a guideline should be. In accordance with the Supreme Court’s usual practice, I would treat the hearing of the State’s application for leave to appeal as the hearing of the appeal, but I would dismiss the appeal.

Supreme Court of Fiji

State v Tawake [2022] FJSC 22; CAV0025.2019 (28 April 2022)