Home | Databases | WorldLII | Search | Feedback Court of Appeal of Fiji

Naitini v State [2015] FJCA 154; AAU102.2010 (3 December 2015)

IN THE COURT OF APPEAL
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. AAU 102 of 2010
[High Court HAC 13 of 2009]

BETWEEN:

1. KILIONI NAITINI
2. ORISI RAOGO
3. INOKE VUETIVITI
Appellants

AND:

THE STATE
Respondent

Coram : Chandra JA
Lecamwasam JA
Madigan JA

Counsel : 1st and 2nd Appellants in person
Mr. J. Savou for the 3rd Appellant
Mr. M. Korovou for the Respondent

Date of Hearing : 7 May 2015
Date of Judgment : 3 December 2015

JUDGMENT

Chandra JA

[1] The Appellants were initially charged with Murder, Tool Room Breaking, Entering and Larceny and Robbery with Violence contrary to sections 199(1) and 300 (a) and 293(1) (a) of the repealed Penal Code, Cap.17 at the Savusavu Magistrate's Court.

[2] The case was transferred to the High Court and the Appellants and another named Soloveni Tabanidalo were charged in an Amended Indictment with Manslaughter and Robbery with violence contrary to sections 198, 201 and 293(1) (b) of the repealed Penal Code, Cap.17.

[3] The Appellants pleaded guilty to the amended indictment and were convicted of manslaughter and robbery with violence. The other co-accused pleaded not guilty and was acquitted after trial.

[4] The Appellants were sentenced as follows:

First Appellant (Kilioni Naitini)

Manslaughter 5 years

Robbery with violence 8 years and 9 months (Sentences to run concurrently)

Second Appellant (Orisi Raogo)

Manslaughter 5 years

Robbery with violence 9 years (sentences to run concurrently)

Third Appellant (Inoke Vuetiviti)

Manslaughter 5 years

Robbery with violence 8 years (sentences to run concurrently.

All three Appellants were to serve a non-parole period of 6 years.

[5] The Appellants appealed against their conviction and sentence and the single Judge granted them leave to appeal their sentence and refused the application to appeal conviction.

[6] The single Judge granted leave, on a single ground of appeal requiring that guidelines be set down on the fixing of non-parole period in sentencing.

Legal Provisions regarding the fixing of non-Parole period

[7] Section 2 of the Sentencing and Penalties Decree 2009 defines non-parole period as "any period fixed under Part V during which an offender who is sentenced to a term of imprisonment is not eligible to be released on parole".

[8] Section 18 of the Sentencing and Penalties Decree 2009 states:

"18. (1) Subject to sub-section (2), when a court sentences an offender to be imprisoned for life or for a term of 2 years or more the court must fix a period during which the offender is not eligible to be released on parole.

(2) If a court considers that the nature of the offence, or the past history of the offender, make the fixing of a non-parole period inappropriate, the court may decline to fix a non-parole period under sub-section (1).

(3) If a court sentences an offender to be imprisoned for a term of less than 2 years but not less than one year, the court may fix a period during which the offender is not eligible to be released on parole.

(4) Any non-parole period fixed under this section must be at least 6 months less than the term of the sentence.

(5) If a court sentences an offender to be imprisoned in respect of more than one offence, any non-parole period fixed under this section must be in respect of the aggregate period of imprisonment that the offender will be liable to serve under all the sentences imposed.

(6) In order to give better effect to any system of parole implemented under a law making provision for such a system, a court may fix a non-parole period in relation to sentences already being served by offenders, and to this extent this Decree may retrospective application.

(7) Regulations made under this Decree may make provision in relation to any procedural matter related to the exercise by the courts of the power under sub-section (6)."

[9] In terms of the said Section 18, the Sentencing Court must fix a non-parole period which is six months less than the head sentence where the sentence imposed is more than two years. The decision in fixing a non-parole period being mandatory, reasons need not be given for doing so, that is, fixing "a" non-parole period which stands in contrast with Section 18(2), where reasons must be provided when the sentencing court does not fix a non-parole period. (vide: Rusiate Savu v. State [2014] FJCA 208; AAU0090.2012 (5 December 2014).

[10] The Sentencing and Penalties Decree 2009 which came into force on 1st February 2010 replaced section 33 of the Amended Penal Code which provided for the imposition of a minimum sentence. A useful discussion of the effect of section 33 of the amended Penal Code and its effect in relation to section 63 of the Prisons Act (Cap 86) is found in the Supreme Court decisions in Maturino Raogo v. State Criminal Appeal CAV 003 of 2010 (19th August 2010) and Munesh Chand v. State [2013] FJSC 5; CAV003.2012 (24 April 2013).

[11] The Prisons Act (Cap.86) was repealed by the Prisons and Corrections Act,2006 which came into force on 27th June 2008, and Sections 27(2) and 28(1) provide that a convicted prisoner would be eligible to a 1/3 remission of the sentence for any term of imprisonment exceeding one month, provided the prisoner shows good behaviour during the term of the sentence.

[12] In Munesh Chand (Supra) the Supreme Court stated that the full remission entitlement under the Prisons Act as amended by the Prisons and Corrections Act, 2006 could be considered only after a convicted prisoner has served the minimum sentence that has been imposed.

[13] A discretion has been granted to the sentencing judge in terms of Section 18 of the Sentencing and Penalties Decree when fixing a non-parole period but is silent as to how that period should be arrived at. Calanchini P in Paula Tora v. The State Criminal Appeal No.AAU 0063 of 2011 (27 February 2015) stated:

"[2] The purpose of fixing the non-parole term is to fix the minimum term that the Appellant is required to serve before being eligible for any early release. Although there is no indication in section 18 of the Sentencing and Penalties Decree 2009 as to what matters should be considered when fixing the non-parole period, it is my view that the purposes of sentencing set out in section 4(1) should be considered with particular reference to rehabilitation on the one hand and deterrence on the other. As a result the non-parole term should not be so close to the head sentence as to deny or discourage the possibility of re-habilitation. Nor should the gap between the non-parole term and the head sentence be such as to be ineffective as a deterrent. It must also be recalled that the current practice of the Corrections Department, in the absence of a parole board, is to calculate the one third remission that a prisoner may be entitled to under section 27(2) of the Corrections Service Act, 2006 on the balance of the head sentence after the non-parole term has been served."

[14] In Maturino Raogo (Supra) the Supreme Court had in considering the imposition of a minimum term under section 33 of the amended Penal Code (which was repealed subsequently as stated above) expressed the view that a sentencing court which is minded to fix a minimum term of imprisonment should not fix it at or less than two thirds of the primary sentence of the Court.

[15] In certain states of Australia and New Zealand legislation has provided the basis on which minimum terms of imprisonment in relation to the head sentence for different offences should be imposed. In Fiji, in the absence of statutory provisions regarding any guidelines for fixing the limits of the non-parole period it would be best to leave it to the discretion of the sentencing judge who should also consider striking a balance between rehabilitation and deterrence when fixing a non-parole period.

[16] In Kumova v. The Queen [2012] VSCA 212 the Supreme Court of Victoria in considering the fixation of the non-parole period discussed the trend of adopting the "usual non-parole period". It was observed that such a trend is likely to create false or unrealizable expectations. The Court referred to a statement made by Weinberg JA in Zamfirescu v. R [2012] VSCA 157 which spells out the objective of a non-parole period:

"It must be remembered that the non-parole period is the minimum period of imprisonment to be served because the sentencing judge considers that the crime calls for such detention."

The Court also observed that:

".............the point of a non-parole period is that it is a sentencing judge's perception of the minimum time which the offender should spend in jail before becoming eligible for release."

Citing Redlich JA in Romero v. R [2011] VSCA 45 it was stated:

"Just as the needs of denunciation, deterrence, condign punishment and community protection demand a head sentence of a higher order, so too are they likely to dictate that the non-parole period be a higher percentage of the head sentence. Otherwise, the gap between head sentence and non-parole period may be so much to detract from the punitive effect of the sentence as to prejudice community protection and undermine public confidence in the integrity of the sentencing process."

Redlich JA and Osborn JA stated:

"27. Like the head sentence, determination of the non-parole period involves the application of well settled principles and practices to the circumstances of the case. All factors are taken into account, first in determining the head sentence and then in fixing the non-parole period. The factors may be differently weighted at each stage of the exercise because there are different purposes behind each function. In fixing the proportion of the head sentence to be given to the minimum sentence there are sentencing principles in operation which, together with the individual circumstances of the case will determine the proportion which the non-parole period must bear to the head sentence. First, like the head sentence, the non-parole period must also reflect the objective gravity of the offence so that the non-parole period should constitute the minimum period of imprisonment that justice requires the prisoner to serve. Secondly, punishment is mitigated in favour of the prisoner's rehabilitation. The benefit of the minimum term is for the purpose of the offender's rehabilitation. Thirdly, in fixing the minimum term, the interests of the community, which imprisonment is designed to serve, must be taken into account." (Emphasis added).

28. No matter how different the individual offences may be and how different the personal circumstances of the offender, the principles which bear upon the determination of how much of the head sentence the prisoner should be required to serve before becoming eligible to conditional freedom, provide a significant level of constraint as to the range of minimum sentences that are open. So the gap between the head and minimum sentence cannot become so great that the minimum sentence no longer adequately reflects the gravity of the crime and fails to satisfy punitive sentencing principles. Furthermore, very long parole periods are rarely desirable. On the other hand, the minimum sentence cannot be fixed so close to the head sentence, that it may fail to give effect to the prisoner's prospects for rehabilitation and so mitigate punishment. The prospect of early release also serves as an incentive to the prisoner to behave within the prison setting and to pursue rehabilitative programmes. In every case, these considerations serve to confine the choice as to the proportion of the head sentence that must be served. The law does not permit idiosyncratic, erratic or unprecedented views to influence the length of a term of imprisonment that may be imposed. The practice also informs the question whether the particular minimum sentence that has been imp0osed is one that was reasonably open.

29. Consistency of punishment between those deserving of equal punishment is a fundamental element of sentencing. The law requires discretionary decisions to be made in conformity with well settled principles and practices. The practice advances the underlying value of equality under the law and the search for and application of unifying principles. By this judicial method the law promotes consistency and fairness in decision making and diminishes the risk of capricious or arbitrary adjudication."

[17] It would be seen therefore that there is no basis for the imposition of the non-parole period in terms of the statutory provisions as it stands now in Fiji except to say that when fixing a non-parole period it should be six months less than the head sentence. This would indicate that a period which is less than six months than the head sentence would be the maximum limit of the non-parole period. If the remission of one third is to be considered at the end of such a six months period, it may go against the spirit of section 4(1) of the Sentencing and Penalties Decree, 2009 in striking a balance between rehabilitation and deterrence.

[18] This brings about the issue of what should be the minimum limit of the non-parole period in relation to the head sentence when imposing a sentence. A useful indication is found in Maturino Raogo (supra) where it was stated that the minimum term of imprisonment should be not less than two thirds of the primary sentence. This should however, not be considered as a general rule as the circumstances relating to the particular case and the nature and seriousness of the crime committed and the manner in which it had been committed may require the imposition of a longer non-parole period than two thirds of the head sentence.

[19] It will also be necessary to consider the personal circumstances of the offender when deciding on the minimum non-parole period, as to whether he/she was a first offender or a person with a history of having committed crimes of a similar or serious nature which may have already been considered when imposing the head sentence. It would be natural for the sentencing court to be influenced by the aggravating and mitigating circumstances which may already have been considered in imposing the sentence.

[20] While leaving the discretion to decide on the non-parole period when sentencing to the sentencing Judge it would be necessary to state that the sentencing Judge would be in the best position in the particular case to decide on the non-parole period depending on the circumstances of the case. In doing so, it is desirable that the sentencing Judge takes into consideration the three objectives stated by Redlich JA and Osborn JA in Kumova v. Queen (supra) as quoted above in paragraph 15.

[21] Although an endeavour was made to set out guidelines in fixing of non-parole periods, it would be desirable as stated earlier to leave the discretion of fixing the non-parole period to the sentencing Judge rather than setting out guidelines. This judgment should not be considered as a guideline judgment and the task of setting guidelines would best be left for a future occasion either to the Judiciary or to the Legislature.

[22] In the present instance the fixing of the non-parole period of 6 years when viewed in relation to the nature of the offences committed, which were manslaughter and robbery with violence would appear to be reasonable as far as the 1st and 2nd Appellants were concerned. The 1st Appellant had 14 previous convictions but they were not taken into account as they were more than 14 years old and had been given a discount of 3 months for his good behavior since then. The 2nd Appellant had two previous convictions and was not given any discount for good behavior.

[23] As regards the 3rd Appellant, since he was a first offender, he got a further one year as a discount and his sentence was 8 years with a non-parole period of 6 years. Since he was a first offender, and with the prospects of rehabilitation being more in his case than with the other two Appellants, a 5 year non-parole period would be reasonable as there would be some measure of consistency in the non-parole fixed for the three Appellants when compared with the head sentence.

[24] In the result the appeal of the Appellants are dismissed except that in the case of the third Appellant his sentence would be a period of 8 years imprisonment with a non-parole period of 5 years.

Lecamwasam JA

[25] I agree with the Judgment and proposed orders of Chandra JA.

Madigan JA

[26] I have read in draft the judgment of Chandra JA and I agree with his decision for the reasons stated therein. I add that a trial judge has heard every nuance and nicety of the evidence and is therefore in the best position to balance the expectations of the community with the hopes of the convict for remission. It is my view that the non-parole period should be distant enough from the head sentence to allow the correctional authorities latitude in alleviating the sentence on the grounds of good behavior. It then becomes a second balance between the role of the Judge and the role of the prison authorities in assessing remission.

Orders of Court

(1) The appeal of the 1st and 2nd Appellants are dismissed.

(2) The appeal of the 3rd Appellant is dismissed subject to the variation in the non-parole period so that his sentence would be 8 years imprisonment with a non-parole period of 5 years.

Hon. Justice S. Chandra
JUSTICE OF APPEAL

Hon. Justice S. Lecamwasam
JUSTICE OF APPEAL

Hon. Justice P. Madigan
JUSTICE OF APPEAL