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Nadavulevu v State [2019] FJCA 77; AAU119.2015 (15 May 2019)

IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL NOS. AAU 119; 115 and 129 of 2015
(High Court Action No: HAC 046 of 2015)

BETWEEN :

ILAITIA NADAVULEVU
MATAIASI MOCEILEVUKA
IRAMI CEINATURAGA
Appellants

AND:

THE STATE

Respondent

Coram : Chandra, RJA

Counsel : Mr T Lee for the Appellant
Ms P Madanavosa for the Respondent

Date of Hearing : 21 January, 2019
Date of Ruling : 15 May, 2019

RULING

[1] The Appellants were charged with three counts of Aggravated Robbery contrary to section 311(1)(a) of the Crimes Act of 2009.

[2] The Appellants pleaded guilty to the charges and were convicted for all three counts of Aggravated Robbery.

[3] On 10^th September 2015, the Appellant were sentenced as follows:

(i) Ilaitia Nadavulevu – 12 years imprisonment with 11 years non parole period.

(ii) Mataisi Moceilevuka – 12 years imprisonment with 11 years non parole period.

(iii) Irami Ceinaturaga – 14 years imprisonment with 13 years non-parole period.

[4] The Appellants filed separate grounds of appeal against their sentences. A consideration of their grounds of appeal are summarised as follows:

1. Credit of 1/3 total sentence not deducted for guilty plea.

2. Aggravation re accounted, superfluous to charge of aggravated robbery.

3. Not enough mitigation factors taken into consideration for first offender.

4. Police co-operation not discounted nor considered to reduce sentence.

5. Sentence harsh and excessive in all circumstances of the case.

6. Judge erred in not considering section 18(2) of the Sentencing and Penalties Decree 2009 and to give reasons why a non-parole period is to be imposed under section 18(1) when accused 1 and 2 were first offenders.
7. That the error arises on having imposed a non-parole sentence too close to the head sentence thus having a crushing effect on the appellants.
8. The statutory entitlement for remission under the Fiji Corrections Act 2006 (section 27 and 28) is affected by the non-parole period and the right to liberty.
9. The starting point is at the high end of the tariff whereby the aggravating factors being added to the charge of aggravated robbery made it harsh and excessive making in-effective any credit on mitigation allowed under the Court discretion.
   

[5] The Appellants have filed their appeals in terms of Section 21(c) of the Court of Appeal Act. Their appeals require leave of the Court of Appeal. It is well established that appeals against sentences will be considered on the basis of the test laid down in Naisua v State [2013] FJSC 14; CAV00010.2013 (20 November 2013) when the Supreme Court stated:

“The test for leave is not whether the sentence is wrong in law. The test is whether the grounds of appeal against sentence are arguable points under the four principles of Kim Nam Bae’s case.”

The Appellate Courts will only 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 or irrelevant matters to guide or affect him;
(iii) Mistook the facts;
(iv) Failed to take into account some relevant consideration.

[6] The Appellants were involved in a home invasion. At about 2 a.m. when the inmates of the house were asleep they had forced open a door of the house, entered the house covering their faces, armed with a pinch bar, sticks and stones. They had threatened the inmates and taken jewellery items, electronic items, laptops, shoes, perfumes, clothes etc. all to the value of $68,000. Items up to the value of $44,200 had been recovered. The Appellants had confessed after being arrested and pleaded guilty on being charged before Court.

[7] In his sentencing judgment the learned High Court Judge proceeded to sentence the Appellants by choosing a starting point of 14 years imprisonment in keeping with the tariff of 8 to 16 years set in Wallace Wise v The State Criminal Appeal Case No.CAV 0004 of 2015. 5 years were added for the aggravating factors and 4 years were deducted for the guilty pleas. A further 8 months were deducted for the period they were in remand custody and for the recovery of properties a further 4 months were deducted. For the 1^st and 2^nd Appellant a further 2 years were deducted as they were first offenders.

[8] The first ground of appeal is on the basis that the Appellants did not get a one third deduction for their guilty pleas. 4 years were deducted for the guilty pleas. The granting of a discount for early guilty pleas is at the discretion of the sentencing Judge. Granting of a one third discount is not a mandatory deduction for an early guilty plea. It depends on the circumstances of the case where the learned Judge would exercise his discretion in granting a deduction.

[9] In the circumstances of this case the deduction of 4 years for the guilty pleas was reasonable and this ground is not arguable.

[10] In the second ground of appeal it is submitted that the learned Judge had re-accounted aggravation in sentencing the Appellants. The learned Judge had at paragraph 6 of the sentencing judgment set out the aggravating factors. It would appear that having started the exercise on the basis of a home invasion offence, the learned Judge again took into account the fact that the offending was carried out at the complainant’s home while they were asleep at night as an aggravating factor which would amount to double counting.

[11] The fact that they were armed was also taken into account again when that was an element of the offence. In view of these positions this ground is arguable.

[12] The third ground relates to the 1^st Appellant, wherein he has taken up the position that adequate discount has not been given for his mitigating factors.

[13] The learned Judge gave a deduction of 2 years for the fact that the 1^st Appellant was a first offender.

[14] The learned Judge had adequately considered the 1^st Appellants mitigating factors in giving a deduction of 2 years and therefore this ground is not arguable.

[15] The 4^th ground of appeal is on the basis that no deduction has been given for their cooperating with the Police.

[16] The entirety of the items that were taken by the Appellants were not recovered but a fair portion was recovered due to the cooperation of the Appellants. The learned Judge gave a deduction of 4 months on that account and therefore this ground is not arguable.

[17] The fifth ground is that the sentences were harsh and excessive.

[18] The sentence of 12 years on the 1^st and 2^nd Appellants being first offenders and the 14years sentence on the third Appellant is within the tariff of 8 to 16 years and therefore this ground is not arguable.

[19] Grounds 6 and 7 refers to the imposition of a non-parole period. The fact that the 1^st and 2^nd Appellants were first offenders does not have an effect on the imposition of a non-parole period when sentencing.

[20] The sentencing Judge need not give reasons for imposing a non-parole period in terms of section 18(2) of the Sentencing and Penalties Act, 2009. On the other hand the Court has to give reasons if a non-parole period is not imposed, while in terms of s.18(1) the sentencing Judge has to impose a non-parole period when the sentence is 2 years or more.

[21] In terms of s.18(4) when fixing the non-parole period it should be at least six months less than the term of the sentence. In the present case the non-parole period is one year less than the head sentence which is thus in keeping with the relevant section.

[22] Grounds 6 and 7 are therefore not arguable.

[23] In ground 8 the Appellants urge that the imposing of the non-parole period affects their statutory entitlement for remission under the Fiji Correction Act 2006.

[24] The fixing of the period of remission is a matter that comes within the Corrections Department and the imposition of the non-parole period which is by the sentencing Judge has no relevance to the remission that may be granted under the Correction Act. The non-parole term sets out the minimum term that a convicted person would have to serve and it is left to the Corrections Department to decide as to how the remission would operate. This ground is not arguable.

[25] The 9^th ground is to the effect that the starting point in the sentencing exercise has been too high. The tariff that is considered for this type of offence is between 8 to 16 years.

[26] The learned Judge chose the starting point of 14 years when he proceeded to sentence the Appellant. In Koroivuki v State [2013] FJCA 13; AAU0018.2010 (5 March 2013) the Court of Appeal stated that the court must consider the objective seriousness of the offence and pick from the lowest to the middle range of the tariff which would be from 8 to 12 years.

[27] The starting point appears to be on this high side and therefore this ground is arguable.

Orders of Court:

Leave to appeal against sentence is allowed on grounds 2 and 9.

Hon. Justice Suresh Chandra

RESIDENT JUSTICE OF APPEAL