Court of Appeal of Fiji

(i) Act) 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.

[8] The sole ground of appeal urged by the appellant is as follows.

Against sentence

(1) ‘THAT the learned trial Judge erred in law and in fact when he failed to consider and give a separate discount for the Appellant being a first offender.

[9] The summary of facts read as follows.

‘On the 1st July 2016 at around 5pm Steven Suresh Narayan (PW1) recalls that an i-taukei youth entered Fexco Pacific Fiji Limited based at Damodar City complex and asked what time Fexco Pacific Limited would close. A few seconds after the conversation, another i-taukei youth entered into the shop and grabbed PW1 from behind. He then pushed PW1 towards the counter and held him down. PW1 further stated that another i-taukei youth grabbed the tilt and exited the main door, the tilt that was taken by i-taukei youths contained foreign currencies.

Renuka Narayan (PW2), operations manager for Fexco Pacific Fiji Limited. On the 1st July 2016 PW1 observed the accused and 2 other youths walk into Fexco Pacific Fiji Limited based at Damodar City complex. The tallest of the three walked towards PW2 grabbed hold of her neck, and held her head against the counter preventing her from making any other movements, further she was held in such a way that PW2 could not speak or scream. PW2 sustained injuries due to the force used by the assailant.

PW2 further stated, that the smallest of the three jumped over the counter and got a hold of the tilt on top of the CPU and jumped out again. The tilt contained the following foreign currencies;

1) Australian dollars amounting to $3870.00

2) Canadian dollars amounting to $400.00

3) Euro dollars amounting to $200.00

4) New Zealand dollars amounting to $650.00

5) US Dollars amounting to $1880.00

6) Vanuatu dollars amounting to $1000.00

7) Samoan dollars amounting to $5.00

8) Fiji dollars amounting to $1000.00

[10] The maximum sentence for aggravated robbery under section 311(1)(a) of the Crime Decree, 2009 is 20 years. The tariff applicable to the aggravated robbery in the form of a home innovation in the night with accompanying violence perpetrated on the inmates was set out in Wise v State [2015] FJSC 7; CAV0004.2015 (24 April 2015) as 08-16 years of imprisonment.

[11] Considering the facts revealed in the summary of facts, I do not see any reason why the sentencing tariff in Wise should not apply to the present case. In some ways the aggravated robbery committed by the appellant with a group is more serious than a home invasion.

[12] The appellant’s specific complaint is that the learned Magistrate had not given a separate discount for him being a first offender. In the sentencing order, the Magistrate having followed Wise had stated as follows.

7. Considering the objective seriousness, I select 10 years imprisonment as the starting point for your sentence.
   
8. According to your caution statement it was shown this offence was well planned. Further substantial amount of monies including foreign currencies were stolen. Converting the amounts to Fijian currencies based on the time of the incident, plus the Fijian currencies shows nearly $13,000.00 was stolen by you and others from the shop. One of the witnesses was injured from the assault as confirmed from the medical report submitted by the prosecution. I consider these as aggravating factors in this case and add 04 years to reach 14 years imprisonment.
   
9. In her mitigation submission your counsel submitted that you are 20 years old, single, cooperated with the police, first offender and seeking forgiveness from the court. For these mitigating factors I deduct 02 years to reach 12 years imprisonment.
   
10. It has been a practice by a sentencing court to consider guilty plea separately and give an appropriate discount (Naikelekevesi v The State Criminal Appeal No AAU 0061 of 2007).
    
11. Further in UK Guilty Plea guidelines of 2007 it has been held that when an accused pleaded guilty at the first available opportunity the reduction is 1/3 and after a trial date is set 1/4 recommended. But when an accused pleaded guilty at the door of the court or after the trial has started he maybe entitle for only 1/10 discount.
    
12. In this case giving full credit to your guilty plea I deduct 1/3 to reach 08 years imprisonment.
    
13. Section 24 of the Sentencing and Penalties Decree stipulates that the remand period has to be considered as the period of imprisonment an accused already served. But you were remanded for only insignificant time period and I am not going to consider that in this case.
    
14. Aggravated Robbery seems to be a prevalent crime in this country at the moment .Hence the courts have a responsibility to send a clear message to the public that this kind of offence, whether committed on a ‘soft’ target such as individuals or a ‘substantial’ target such as a service station or shop, is likely to be visited with a stern and fitting custodial sentence.
    
15. JOSEFA TAWAKE, you are sent to d to 08 years imprisonment for the offence of Aggravated Robbery contrary to section 311(1) of the Crimes Decree with a non- parole period of 06 years.
    

[13] The Magistrate had picked 10 years to start with considering the ‘objective seriousness’ of the offence following Koroivuki v State [2013] FJCA 15; AAU0018 of 2010 (05 March 2013). Perhaps, in the process the Magistrate may have erred in adding 04 years for aggravating factors some of which appear to have been subsumed in the starting point of 10 years although it is not ascertainable what aggravating factors going to ‘objective seriousness’ the Magistrate had actually considered in picking the starting point. This is because all the aggravating factors seem to relate to the offending and not the offender. On the other hand, the appellant had received a full 1/3 discount for his guilty plea which he perhaps did not deserve considering the gravity of the offence charged. For example in Aitcheson v State [2018] FJCA 29; CAV0012 of 2018 (02 November 2018) the Supreme Court cited paragraph [18] in Mataunitoga and stated it was a more flexible approach towards an early guilty plea and said:

‘[15] The principle in must must be consd with morh more flexibility as Mataunitoga indicaThe overall gravity oity of the offence, and the need for the hardening of heartspreva, may shorten then the discount to be given. A careful appr appraisal of all factors as Goundar J has cautioned is the correct approach. The one third discount approach may apply in less serious cases. In cases of abhorrence, or of many aggravating factors the discount must reduce, and in the worst cases shorten considerably.’

[14] Though, the Magistrate had given only 02 years of discount for all mitigating factors including the appellant having been a first time offender, it is clear that the ultimate sentence is at the lower end of the sentencing tariff for aggravated robbery and it could never be lower than that in the circumstances of this case.

[15] It is the ultimate sentence that is of importance, rather than each step in the reasoning process leading to it. When a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step in the reasoning process that must be considered (vide Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006). In determining whether the sentencing discretion has miscarried the appellate courts do not rely upon the same methodology used by the sentencing judge. The approach taken by them is to assess whether in all the circumstances of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies within the permissible range (Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015).

[16] Thus, there is no merit in the appellant’s complaint. It should not be forgotten that in any event the full court has the power to revisit the sentence including its adequacy under section 23(3) of the Court of Appeal Act, if it comes up before it for determination.

[17] That said, however, by way of some general observations, I may mention regarding the appellant’s appeal point that in Balaggan v&##160; [260;[2012] F12] FJHC 1032; HAA031.2011 (24 April 2012) Gounder J had the occasion to observe as follows.
‘[10] This ground is misconceived. I am not aware of any law that says that a first time offender is entito one-third reduction in sein sentence. But, I am aware that as a matter of principle, the courts in Fiji generally give reduction in sentences for offenders who plead guilty. In Naikelekeleveate [2008] FJCA 11; AAU0061.2007 (27 June 2008e Cou Appeal stressed ssed that guilty plea should be discountedunted separately from other mitigating factors present in the case.

[18] I may also highlight a few other aspects of sentencing for guidance of the trial judges. Some judges following Koroivuki v State [2013] FJCA 15; AAU0018 of 2010 (05 March 2013) pick the starting point from the lower or middle range of the tariff whereas other judges start with the lower end of the sentencing range as the starting point.

[19] In Senilolokula v State [2018] FJSC 5; CAV0017.2017 (26 April 2018) the Supreme Court has raised a few concerns regarding selecting the ‘starting point’ in the two-tiered approach to sentencing in the face of criticisms of ‘double counting’ and question the appropriateness in identifying the exact amount by which the sentence is increased for each of the aggravating factors stating that it is too mechanistic an approach. Sentencing is an art, not a science, and doing it in that way the judge risks losing sight of the wood for the trees.

[20] The Supreme Court once again said in Kumar v State [2018] FJSC 30; CAV0017.2018 (2 November 2018) that whatever methodology judges choose to use, the ultimate sentence should be the same. If judges take as their starting point somewhere within the range, they will have factored into the exercise at least some of the aggravating features of the case. The ultimate sentence will then have reflected any oth> aggravagravating features of the case as well as the mitigating features. On the other hand, if judges take as their starting point the lower end of the range, they will not have fad int exercise any;of t;of the aggravatiavating factors, and they will then have to factor into the exercise all the aggravating features of the case as well as the mitigating features. Either way, you should end up with the same sentence. If you do not, you will know that something has gone wrong somewhere.