Court of Appeal of Fiji

[23] In R v Lawsan [1982] 2NZLR 214 the New Zealand Court of Appeal held that, the Court would have regard to disparity as a ground of appeal only when the disparity is unjustifiable and gross. 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?

[24] Under the parity principle, offenders participating in the same offence should generally incur similar criminal sentences. However, where there are differences in terms of culpability or criminality, antecedents and character of co-offenders, a disparity in sentence is justified.

[25] The principle of parity of sentence does not necessarily mean that each criminal co-offender will always receive the same sentence. Where there are differences in terms of culpability or criminality, antecedents and character of co-offenders, a disparity in sentence is justified.

The reasons for the disparity of the sentence in respect of Appellant Jolame Vunituraga

[26] Appellant Laisenia Vuluma was given a deduction of 2 years for mitigating circumstances whereas Appellant Jolame Vnituraga was only given 6 months’ deduction for the mitigating circumstances.

[27] Furthermore, Laisenia Vuluma was sentenced to 7 years 10 months and 15 days imprisonment with eligibility for parole after serving 6 years whereas Jolame Vunituraga was sentenced to 9 years 4 months with eligibility for parole after serving 8 years.

[28] The disparity of sentences has arisen upon consideration of an Aggravating Factor against Appellant Jolame Vunituraga and mitigating factors in favour of Appellant Jolame Vunituraga.

[29] In its sentencing submissions the State in aggravation of sentence had subd, &ed, “that the impugned robbery was not the only robbery Appellant Jolame Vunituraga had committed. He had been previously convicted and sentenced on 207, for Robbery with Violence for which he had received a sd a suspended sentence and a fine of $ 150.00, with a default sentence of 1-month imprisonment.”

[30] Accordingly, the learned High Court Judge had meted out a justifiable higher sentence against Appellant Jolame Vunituraga having regard to the said aggravating factor.

Mitigating factors considered in favour of Appellant Jolame Vunituraga

[31] In respect of Laisenia Vuluma the Learned High Court Judge had considered the following three circumstances as mitigating circumstances:

(i) He was a first offender at the age of 29 years
(ii) Family depended on him
(iii) He was remorseful

[32] Having regard to the above I am of the view that the sentence imposed by the High Court, accords with the principle of parity and the second ground of appeal fails.

Third Ground of Appeal

[33] The Learned Trial Judge erred in law and in fact when he failed to give sufficient discount for the guilty plea.

[34] In Laisiasa Koroivuki v the State (Criminal Appeal AAU 0018 of 2010) the Court of Appeal discussed the guiding principles for determining the starting point in sentencing and observed:

“In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range”.

[35] The said guide lines have been appropriately followed by the Learned High Court Judge in the following manner.

The learned High Court Judge had taken 10 years as the starting point for each count of Aggravated Robbery. Upon consideration of the two aggravating factors that,

(i) the Robbery was well planned
(ii) the high value of the items

The High Court Judge had added two years which enhanced the sentence to 12 years.

[36] In respect of Appellant Laisenia Vuluma the High Court Judge having considered the following mitigating factors:

(i) that the appellant being 29 years of age and being a first offender
(ii) the family being dependent on him
(iii) the fact that the accused had been remorseful,

had deducted 2 years from the sentence reducing it to 10 years.

Upon consideration of the guilty plea the High Court Judge had deducted 2 years reducing the sentence to 8 years.

[37] The remand period of 1 month and 15 days had also been deducted making the sentence 7 years and 10 months and 15 days.

[38] The following mitigating circumstances had been considered in respect of Appellant Jolame Vunituraga in the sentencing order;

(i) You are a father of 7 years old son and sole bread winner of the family,
(ii) You are remorseful.

[39] For the above mitigating circumstances 6 months had been deducted reducing the sentence to 11 years and 6 months.

Upon consideration of the guilty plea the High Court Judge had deducted 2 years reducing the sentence to 9 years and 6 months.

The remand period of 2 months had been deducted reducing the sentence to 9 years and 4 months.

[40] Accordingly, the learned High Court Judge had made appropriate deductions on the sentences in respect of both appellants, and adequately deducted two years from the sentences for their guilty plea. Having regard to the above, the 3^rd ground of appeal fails.

Fourth Ground of Appeal

[41] The sentence is harsh and excessive in view of all of the circumstances of the case.

The offence of Aggravated Robbery is a serious offence and warrants a deterrent punishment.

Referring to the gravity and the seriousness of the offence of Aggravated Robbery the Hon. Chief Justice Gates in (2015) FJSC7; CAV0004.2015 (24 April 2015) had observed,

&#i> “But this is no simply a case of robbery but one of aggravated robbery. Trcumstances charged are eite 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.

... 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”.

[42] In Kim Nam Bae v The State [AAU0015 of 1998S (26uary 1ary 1999)] the Court of Appeal stated thus;

“It is well established law that before this Court can disturbsentence, the appellant must demonstrate that the Court below fell into error in exercisingising its sentencing discretion. If the trial Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if mistakes the facts, if he does not take into account some relevant consideration, then the Appellate Court may impose a different sentence. This error may be apparent from the reasons for sentence or it may be inferred from the length of the sentence itself.”

[43] In Naisua v State [2013] FJSC 14; CAV 0010.2013 court held that: Appellate Courts will interfere with a sentence if it is demonstrated that the trial Judge made one of the following errors:

(i) acted upon a wrong principle
(ii) Allowed extraneous
(iii) Mistook the facts
(iv) failed to take into account some relevant consideration

None of these errors had occurred in the impugned sentencing order of the Learned High Court Judge.

[44] Having regard to the above I am of the view that the sentence imposed by the learned High Court Judge on both Appellants are commensurate with the seriousness of the crime and see no valid reason to interfere with it.

[45] Accordingly;

(i) I would dismiss the appeal of the 1^st Appellant against his sentence.

(ii) I would dismiss the appeal of the 2nd Appellant against his sentence.

Appeal of Appellant Eremasi Tasova

[1] The appellant was charged before the Lautoka High Court, with two counts of Aggravated Robbery contrary to section 311(1) (a) of the Crimes Decree 2009, one count of theft of Motor Vehicle contrary to section 291 (1) of the Crimes of the Crimes Decree, No. 44 of 2009 and one count of the offence of Resisting Arrest contrary to section 277 of the Crimes Act 2009

[2] Upon the appellant pleading not guilty to the charges against him, the matter proceeded to trial at the conclusion of which the three assessors unanimously found the Appellant guilty on all three charges against him and the Learned High Court Judge concurred.

[3] On 9^th May 2014 the Appellant was convicted of all charges against him.

[4] On 22 July 2014 the Appellant was sentenced to 12 years’ imprisonment for each count of Aggravated Robbery, 9 months’ imprisonment for Theft of a Motor Vehicle and 6 months’ imprisonment for Resisting Arrest. Sentences were ordered to run concurrently.

[5] Being aggrieved by the said conviction and sentence the Appellant appeals to this Court. Justice Daniel Goundar had granted leave to appeal, on the application which was out of time by about nine months.

[6] Now I turn to the five grounds of appeal that have been urged on behalf of the Appellant Laisenia Vuluma

First Ground of Appeal

(1) THAT the Learned Trial Judge erred in law depriving me of my right to a fair trial by not remitting the charge of Resisting Arrest to be tried in the Magistrates Court since it was a summary offence triable only in the Magistrates’ Court. Failure to do resulted in a miscarriage of justice in the circumstances of the case and to the Appellant.

[7] According to the court proceedings on 20^th March 2012 the prosecution had made an application for the case to be transferred to the High Court which the Magistrate has allowed.

[8] However, as conceded by the state in their written submissions, the appellant had not been given his right of election for the offence of Resisting Arrest, as is required in terms of section 4(1) (b) of the Criminal Procedure Act which states that “any indictable offence triable summarily under the Crimes Act 2009 shall be tried by the High Court or a Magistrates Court, at the election of the accused person;

[9] Since the arrest of the appellant was made for the commission the offences of aggravated robbery, which formed the subject matter of the substantive charges of the indictment, trying him for the minor offence of resisting of arrest along with the substantive charges had not caused any substantial miscarriage of justice to the Appellant for this court to act under section 23 (1)(a) of the Court of Appeal Act. Hence I am of the view that this ground of appeal fails.

Second Ground of Appeal

(2) THAT learned Trial Judge erred in law in convicting the Appellant on a defective charge of Resisting Arrest. In doing so the judgment and conviction is unsafe and fatal amounting to a miscarriage of justice.

[10] In the charge of Resisting Arrest, the particulars alleged, that the appellant on 14 March 2012 at Lautoka in the Western Division resisted D C Nakatasavu a police officer, while effecting arrest in due execution of his duty. However, evidence led at the trial did not conform to the particulars of the charge. The evidence was to the effect that the appellant resisted arrest, when the police officer arrested him in the Central Division, and not in the Western Division as alleged in the particulars of the charge.

[11] The grounds on which an appeal can be allowed and the verdict is set aside under Section 23(1) (a) are as follows:-

(a) On the ground that it is unreasonable or cannot be supported having regard to the evidence

(b) (b) On the ground of a wrong decision of any question of law

(c) (c) On any ground there was a miscarriage of justice

[12] In the event of one or more of the above grounds being satisfied the court shall allow the appeal and set aside the verdict.

[13] A mere error in the charge as to the place of arrest does not cause a miscarriage of justice. In Kirikiti v State [2015] FJCA 150; AAU005.2011 (3 December 2015) the court of Appeal has held that;

“Unless the appellant can satisfy this court on the ground of appeal raised against conviction the court shall dismiss the appeal under the provisions of Section 23(1) (a) of the Court of Appeal Act Cap 12.

me="Heading2ding280">In this case the appellant has to satisfy the court that due to the dehe defective or imperfect indictment therea miscarriage of justice. If he succeeds his appeal will bell be allowed. If he fails his appeal will be dismissed.

Since the appellant was in no way prejudiced due to the particulars of the offence being defective or imperfect by the omission of the words ‘force’ or ‘robbed’ in the particulars of the offence, I hold that there was no miscarriage of justice in this case.”

[14] In Singh v Reginam [1967] FJCA 4; [1967] 13 FLR 27 (23 February 19t has held teld that;

“The Court of Appeal discussed and referred to the cahe case of R. v. McVitie [19 All ER 498, in which the statement of offence was "Possessing explosives contrary to s.4 (s.4 (1) of the Explosive Substances Act 1883" which makes it a felony "knowingly" to have in a person's possession explosive substances in particular circumstances. The word "knowingly" was omitted from the particulars of the offence but the Court of Criminal Appeal, consisting of five judges held that the omission did not make the indictment bad but only defective or imperfect. It was therefore lawful, no substantial miscarriage of justice having occurred, to apply the proviso. McVitie's case was followed in R. v. Yule (1963) 47 Cr. App. R. 229”.

[15] In the instant case, the defect on the said count mentioned above, has not caused a miscarriage of justice and hence I would hold that this ground of appeal fails.

Third Ground of Appeal

(3) THAT the learned Trial Judge erred in law in ruling the confession statement as admissible in the voir dire ruling when;
(i) The learned Trial Judge failed to apply the burden and standard of proof when he ruled that the answers given in the caution interview was given voluntarily.
(ii) There was a wrong assessment of weight and analysis given to the medical report in regard to the injuries sustained whilst in police custody.
(iii) The learned Trial Judge failed to satisfy that there were no general grounds of unfairness existed before and during the recording of the caution and charge interviews.

[16] At the Voir Dire Inquiry it has been submitted on behalf of the appellant that all the police officers who came into contact with the Appellant noticed the injuries on the Appellant. However the Court had held that; “Accordingly I have come to the view that in regard to injuries in the medical report of the accused; the State satisfied me beyond reasonable doubt that those were caused at the time of the arrest.” Police officers had made notes of the injuries in the relevant records. The interviewing officers have observed these injuries and had continued with the interview. The accused was asked whether he was suffering from any pain or injuries that will affect him giving the interview. The accused had told that they could continue with the interview and he needed to see the doctor after the interview. The Accused was produced before a doctor during the interview. The doctor observed him to be mentally calm and physically healthy. Accordingly the learned High Court Judge rejected the evidence of the accused that he was forced before, during and after this caution interview. The learned trial judge then held that he was satisfied that the interview was voluntary and that it was obtained by fair means, without the Appellant being subjected to torture in any manner.

[17] It is also noteworthy that when the Appellant was produced before the magistrate for the first time on the 20^th March 2014 and thereafter on the 24^th April he never made any complaint to the magistrate against the manner in which the caution interview was conducted.

[18] Having regard to the above I am of the view that the 3^rd ground of appeal fails.

Fourth Ground of Appeal

(4) THAT the learned Trial Judge erred in law when His Lordship did not direct himself and the assessors in Summing Up and Judgment to consider each case and / or counts separately and that it does not mean that if Appellant was guilty of Count Four that does not automatically allow them [ assessors] to find Appellant guilty on all counts.

In the instant case in paragraph 17of the summing up the learned High Court Judge had directed the assessors stating that;

“The case of each accused must be taken separately. That is, you must find evidence as to what each accused did to demonstrate that he too had shared the intention in common to prosecute unlawful purpose; this ground of appeal fails.”

In view of the above direction of the High Court the 4^th ground of Appeal fails.

Fifth Ground of Appeal

(5) THAT the learned Trial Judge erred in law;

• (i) When the learned Trial Judge did not direct the assessors adequately and properly on the weakness of identification before they [assessors] could act upon it.
• (ii) When the learned Trial Judge did not direct the assessors and himself that failure to hold a proper identification resulted in the dock identification being unfair and prejudicial.
• (iii) When the learned Trial Judge did not direct the assessors as to why there is a need for special caution and why it is given. Failure to do so denied the Appellant a fair trial.
  

This ground of appeal is totally without merit>