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Bulitaiwaluwalu v State [2014] FJCA 203; AAU0046.2010 (5 December 2014)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CRIMINAL APPEAL NO. AAU0046 OF 2010
[High Court Case No. HAC 0069 of 2009S]

BETWEEN:

TOMASI BULITAIWALUWALU
Appellant

AND:

THE STATE
Respondent

Coram : Calanchini P
Goundar JA
Kumararatnam JA

Counsel : Appellant in Person
Ms P. Madanavosa for the Respondent

Date of Hearing : 8 September 2014
Date of Judgment : 5 December 2014

JUDGMENT

Calanchini P:

I have read the draft judgment of Goundar JA and agree that the appeal against sentence should be dismissed.

Goundar JA:

[1] This is an appeal against sentence only. The appellant and his accomplice, Volau Kotoisuva were jointly charged with one count of robbery with violence contrary to section 293(1)(b) of the Penal Code Cap 17. It was alleged that on 2 June 2009 the appellant in the company of others robbed a shop selling mobile phones and other phone accessories in Nausori Town.

[2] On 19 March 2010, the appellant and his accomplice pleaded guilty to the charge in the High Court at Suva. They were sentenced to a term of 8 years' imprisonment each without any non-parole period fixed. When the sentence in this case was imposed, both offenders were serving prisoners. Volau Kotoisuva was serving 30 months' imprisonment for post office breaking, entering and larceny, imposed on 16 July 2009. Volau Kotoisuva's sentence was made wholly concurrent to his pre-existing sentence of 30 months' imprisonment. The appellant was serving a total sentence of 8 years' imprisonment for two counts of robbery with violence, imposed on 10 September 2009. The appellant's new sentence was made 5 years concurrent and 3 years consecutive to his pre-existing sentence. The appellant's total sentence was 11 years' imprisonment for three counts of robbery with violence effective from 10 September 2009.

[3] It is against the partial consecutive order that the appellant was granted leave to appeal by a single judge. The appellant's contention is that the partial consecutive order has resulted in disparity in sentences. He submits that like his accomplice, his sentence should have been made wholly concurrent with his pre-existing sentence.

[4] According to the facts tendered by the State in support of the guilty pleas, four men entered the mobile shop armed with a chopper, threatened the employees and demanded cash. While the robbery was in progress, four customers entered the shop. A male customer was assaulted and his mobile phone was taken away from him by the robbers. The customers which included two women were confined in a separate room while the intruders robbed the shop. After stealing property to a total value of $4333.00, the robbers fled the scene.

Parity principle

[5] The parity principle which has its origin in the common law is well-established in Fiji. In Bote v The State (unreported Criminal Appeal No. AAU0011 of 2005; 11 November 2006), the Court of Appeal explained the principle at paragraph 15 as follows:

"The parity principle, which applies where the sentences imposed on co-offenders are so disproportionate as to leave the offender with the larger sentence, with a justifiable sense of grievance (Lowe v The Queen [1984] HCA 46; ((1984) [1984] HCA 46; 154 CLR 606 and R v Fawcett (1983) 5 Cr.App R (S) 158),..."

[6] When disparity in sentences is raised as a ground of appeal, the question for the appellate court is whether a reasonable and independent observer, with full knowledge of the facts and circumstances relating to the disparity could consider that something had gone wrong with the administration of justice (Sakeasi Raitumaiye v State (unreported Criminal Appeal No. AAU0060 of 2008S; 25 March 2006). In R v Lawson [1982] 2 NZLR 214, the New Zealand Court of Appeal held that "the Court would have regard to disparity as a ground of appeal only where the disparity is unjustifiable and gross".

[7] In sentencing the appellant, the learned judge did not draw any distinction in the roles each offender played in the robbery. After referring to the sentencing guidelines for robbery with violence that was enunciated in State v Rokonabete & Ors (unreported High Court Criminal Case No. HAC 118 of 2007), the learned judge said the tariff for the offence was between 6 to 14 years' imprisonment. The learned judge used the same starting point for both offenders, and after adjusting for the mitigating and aggravating factors, arrived at a sentence of 8 years' imprisonment for each offender. As far as this case is concerned, the appellant and his accomplice were given the same punishment. There cannot be a legitimate complaint based on disparity when the sentences are the same for the offenders.

[8] The question for the Court is whether the order that made the appellant's sentence partially consecutive has given rise to a disparity in sentences that is unjustifiable and gross?

Partial concurrent and partial consecutive sentence

[9] Before the Crimes Decree, the Criminal Procedure Decree and the Sentencing and Penalties Decree came into effect on 1 February 2010, the sentencing discretion of the trial courts were governed by the Penal Code, the Criminal Procedure Code and the common law. The discretion to impose a partially concurrent and partially consecutive sentence was specifically provided by section 28(4) of the Penal Code. Section 28(4) provided:

"Where a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence of imprisonment which is passed upon him under the subsequent conviction shall be executed after the expiration of the former sentence, unless the court directs that it shall be served concurrently with the former sentence or any part hereof..."

[10] In Joji Waqasaqa v State (unreported Criminal Appeal No. CAV0009 of 2005S; 8 June 2006), the Supreme Court explained the ambit of section 28(4) at paragraphs [31] and [32] as follows:

"This provision means that sentences for different offences that are imposed when conviction occurs separately are to be served consecutively unless by directing concurrency or partial concurrency the court otherwise orders. A similar principle applies where conviction of two or more distinct offences occurs at one trial, although in that event there is no option of partial concurrency [(See Criminal Procedure Code, s.12(1)]. See also Prisons Regulations, reg. 139, which also provides for the manner of calculating remissions where there is partial concurrency.

These provisions mean that there should be no automatic resort to concurrency where sentences are imposed for separate offences. Indeed, we would go further and state that entire concurrency needs reasoned justification lest the effective punishment for one offence is rendered nugatory due to the prisoner serving it entirely while serving the sentence imposed earlier for a separate offence."

[11] By the time the appellant pleaded guilty and was sentenced by the High Court, the Penal Code had been repealed, making section 28(4) irrelevant. The appellant was sentenced at a time when the Sentencing and Penalties Decree has come into force and was relevant to the sentencing of the appellant. The discretion to order a sentence to be served concurrently or consecutively is governed by section 22 of the Sentencing and Penalties Decree. Section 22 states:

"(1) Subject to sub-section (2), every term of imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of imprisonment.

(2) Sub-section (1) does not apply to a term of imprisonment imposed –

(a) in default of payment of a fine or sum of money;

(b) on a prisoner in respect of a prison offence or as a result of an escape from custody;

(c) on a habitual offender under Part III;

(d) on any person for an offence committed while released on parole; or

(e) on any person for an offence committed while released on bail in relation to another offence.

(3) Every term of imprisonment imposed on a person in default of payment of a fine or sum of money shall, unless otherwise directed by a court, be served –

(a) consecutively on any uncompleted sentence imposed on the person in default of payment of a fine or sum of money; but

(b) concurrently with any other uncompleted sentence imposed on that person.

(4) Every term of imprisonment imposed on a prisoner by a court in respect of a prison offence or an escape offence must, unless otherwise directed by the court based on exceptional circumstances, be served consecutively on any uncompleted sentence of imprisonment.

(5) Every term of imprisonment imposed on a prisoner by a court in respect of an offence committed while released on parole in relation to another sentence of imprisonment imposed on that person must, unless otherwise directed by the court based on exceptional circumstances, be served consecutively on any uncompleted sentence of imprisonment which the offender may be required to serve in custody on cancellation of the parole order.

(6) Every term of imprisonment imposed on a prisoner by a court in respect of an offence committed while released on bail in relation to any other offence must, unless otherwise directed by the court based on exceptional circumstances, be served consecutively on any uncompleted sentence of imprisonment."

[12] These provisions mean that there is now an automatic resort to concurrency where sentences are imposed for separate offences, unless the court directs otherwise. If the court decides to direct the subsequent sentences to be served consecutively then the decision needs reasoned justification.

[13] Section 22(1) is, of course, subject to subsection (2). What this means is that an automatic resort to concurrency does not apply to sentences imposed in the circumstances prescribed under subsection (2) (a)-(e). Subsection (2) (e) was applicable to the appellant.

[14] When the appellant was sentenced by the High Court, the option of an automatic resort to concurrency was not available to him because he committed the robbery in the present case while on bail in an earlier robbery with violence case. As far as the appellant was concerned, an order of concurrency required exceptional circumstances under section 22(6). The Sentencing and Penalties Decree does not provide any definition for the phrase 'exceptional circumstances'. What constitutes an exceptional circumstance will depend on the facts of each case. But if exceptional circumstances are not present, then that does not mean that the sentencing court has no option but to impose a consecutive sentence. The sentencing court must still have regard to the totality principle when considering imposing a consecutive sentence. This approach was endorsed by the Supreme Court in Waqasaqa (supra) at paragraphs [33] – [36]:

"In a case like the present, where the later offence is committed while the prisoner was on bail awaiting trial for the earlier offence, a substantial concurrency of sentences for the two separate escapades would only encourage the prisoner on bail to make (criminal) hay while the sun shines. Sentencing practice in Australia, England and New Zealand reflects these principles by generally imposing consecutive rather than concurrent sentences in these situations (see: R v Richards [1981] 2 NSUL R 464; and R v Kain (1985) 38 SASR 309; Archbold 2006 s 5-63, R v Wallace [1983] NZLR 758).

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).

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."(underlining mine).

[15] In the present case, the learned High Court applied the above principle when he ordered that the appellant serve a partial consecutive sentence. The appellant's culpability was clearly higher than his accomplice's culpability. The appellant committed a third robbery while he was on bail on two other charges of robbery with violence. In my judgment, the total sentence of 11 years' imprisonment reflects the criminality involved and the disparity in sentence is justified. Furthermore, the appellant and his accomplice are fortunate that the learned High Court judge did not fix a non-parole period for them. Although this Court has discretion to fix a non-parole period on an appeal, I am hesitant to exercise that discretion in light of the fact that the appellant's accomplice has not appealed against his sentence, and fixing a non-parole period for the appellant only could lead to disparity in sentences. The effect of not having to serve a non-parole period means that the appellant and his accomplice may qualify for the full one third remissions under the Prisons Regulations.

[16] For these reasons, the appeal against sentence must fail. I would dismiss the appeal.

Kumaratnam JA:
I agree with the reasons and conclusions reached by Goundar JA.

Order of the Court:
The appeal against sentence is dismissed.

............................................
Hon. Mr. Justice W. Calanchini
PRESIDENT

.............................................
Hon. Mr. Justice D. Goundar
JUSTICE OF APPEAL

..............................................
Hon. Mr. Justice P. Kumararatnam
JUSTICE OF APPEAL

Solicitors:
Appellant in Person
Office of the Director of Public Prosecutions for State