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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CRIMINAL APPEAL NO.AAU 004 of 2019
[In the High Court at Suva Case No. HAC 031of 2017S]
BETWEEN:
PITA DOMONI
Appellant
AND:
STATE
Respondent
Coram : Prematilaka, JA
Counsel: Mr. M. Fesaitu for the Appellant
Mr. R. Kumar for the Respondent
Date of Hearing: 10 December 2020
Date of Ruling: 11 December 2020
RULING
[1] The appellant had been charged in the High Court of Suva on a single count of aggravated robbery contrary to section 311(1)(a) of the Crimes Act, 2009 committed with three others on 30 December 2016 at Samabula in the Central Division.
[2] The information read as follows.
‘Statement of Offence
AGGRAVATED ROBBERY: Contrary to Section 311 (1)(a) of the Crimes Act 2009.
Particulars of Offence
PITA DOMONI, LEMEKI SEVUTIA TAUVOLI and MALAKAI TOKA on the 30 December 2016, at Samabula in the Central Division, robbed JULIE SUTHERLAND of cash valued at $65.00, 1 x black I-Pad cover valued at $400.00, 1 x Apple brand I-Pad valued at $2,000.00, 1 x Sony digital camera valued at $300.00, 1 x Nikon digital camera valued at $300.00, 2 x packets of perfume valued at $150.00, 1 x black backpack bag valued at $80.00, 1 x bottle Whiskey valued at $150.00, 1 x bottle of Japanese Choya valued at $50.00, 2 x bottles of white wine valued at $40.00, 1 x Samsung S4 galaxy mobile phone valued at approximately $1,500.00 and 1 x silver Dell Inspiron laptop valued at approximately $1,043.00, Australian foreign currency AU$3,000.00 approximately valued at $4,735.00, 1 x black Dell Inspiron laptop valued at approximately $1,250.00 and 1 x black Dell Latitude laptop valued at approximately $1,250.00, all to the total approximate value of $13,313.00, the said property of JULIE SUTHERLAND.”
[3] The appellant had pleaded guilty to the information and he had admitted the summary of facts and the particulars of the offence given in the information on 27 April 2018. The High Court judge had convicted the appellant on his own plea and sentenced him on 28 December 2018 to a sentence of 13 years of imprisonment with a non-parole period of 12 years.
[4] The summary of facts is as follows.
‘The Accused
The Complainant
All to the total approximate value of $13,313.00 the properties of PW1.
❖ [A co the Record of Interviterview of the Accused is annexed as A1] [Not included]
a. 1 x Samsung S4 galaxy mobile phone;
b. 1 x Apple brand I-Pad;
c. 1 x silver Dell Inspiron laptop;
The said items were positively identified by PW1 as the same items that were stolen from her residence.”
[5] A timely notice to appeal against sentence had been filed by the appellant on 15 January 2019. The Legal Aid Commission had filed amended grounds of appeal against sentence and written submissions on 15 September 2020. The State had tendered its written submissions on 23 October 2020.
[6] In terms of section 21(1) (c) of the Court of Appeal Act, the appellants could appeal against sentence only with leave of court. The test for leave to appeal is ‘reasonable prospect of success’ (see Caucau v State AAU0029 of 2016: 4 October 2018 [2018] FJCA 171, Navuki v State AAU0038 of 2016: 4 October 2018 [2018] FJCA 172 and State v Vakarau AAU0052 of 2017:4 October 2018 [2018] FJCA 173, Sadrugu v The State Criminal Appeal No. AAU 0057 of 2015: 06 June 2019 [2019] FJCA87 and Waqasaqa v State [2019] FJCA 144; AAU83.2015 (12 July 2019) in order to distinguish arguable grounds [see Chand v State [2008] FJCA 53; AAU0035 of 2007 (19 September 2008), Chaudry v State [2014] FJCA 106; AAU10 of 2014 and Naisua v State [2013] FJCA 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds.
[7] Further guidelines to be followed for leave to appeal when a sentence is challenged in appeal are well settled (vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013] FJSC 14;
(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.
[8] Grounds of appeal
[10] The trial judge had explained the sentencing process as follows in the sentencing order.
“... it is our duty to make clear these type of offences will be severesapprby the courts ands and be met with appropriately heavy term 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...”
“...Sentences will be enhanced where additional aggravating factors are also present, examples would be:
(i) Offence committed during a home invasion.
(ii) In the middle of the night when victims might be at home asleep.
(iii) Carried out with premeditation, or some planning.
(iv) Committed with frightening circumstances, such as the smashing of windows, damage to the house or property, or the robbers being
masked.
(v) The weapons in their possession were used and inflicted injuries to the occupants or anyone else in their way.”
(vi) Injuries were caused which required hospital treatment, stitching and the like, or which come close to being serious as here
where the knife entered the skin very close to the eyes.
(vii) The victims frightened were elderly or vulnerable persons such as small children...”
(i) The offence was a home invasion. The female complainant was 60 years old. She was in her house at 7 pm after going for a walk. You Accused No. 1 and 3, with another, attacked her in her own house. It was dark at the time. You obviously showed no respect to her right to live peacefully in her house. I am sure you would not want 3 armed i-taukei men attack your family in your own house. Thus you must expect to serve a long prison term in this case to teach you to respect other people’s home.
(ii) Pre-planning. You obviously prepared yourselves when you attacked the complainant. You knew the surroundings well, and came prepared as a group, to counter oppositions.
(iii) The two of you, and your friend were masked and wearing gloves. You were armed with a knife, scissors and a baseball bat. You confronted the 60 year old complainant as a group, and completely subdued her and threaten her to surrender her properties.
(iv) You tied her up, gagged her and confined her, so she could not resist. The complainant was vulnerable.
(v) By offending against her, you had no regards to her right as a human being, her right not to be harmed, and her right to a happy and peaceful life.
(i) Accused No. 1, you pleaded guilty to the charge after 1 year 3 months 4 days after first call in the Suva Magistrate Court. Accused No. 3, you pleaded guilty to the charge 1 year 8 months after first call in the Suva Magistrate Court. For this, you are entitled to some discount, as you had saved some court time.
(ii) Accused No. 1, you had been remanded in custody for approximately 5 months, while awaiting sentence. This was because on 13.6.17 and 2.1.18, you were sentenced to 13 months and 4 years 10 months imprisonment, both to be concurrent to each other.
(iii) Accused No. 3, you had been remanded in custody for approximately 1 year 4 months, as you were sentenced to 30 months imprisonment on 2.5.18.
(iv) Some stolen properties were recovered.
[11] The appellant’s argument is that the trial judge had double counted matters under paragraph 11(i) and (iv) of the sentencing order as aggravating factors which the judge may have already considered in picking the starting point in the middle rage of the tariff at 12 years.
[12] In Senilolokula v State [2018] FJSC 5; CAV0017.2017 (26 April 2018) the Supreme Court raised a few concerns regarding selecting the ‘starting point’ in the two-tiered approach to sentencing in the face of criticisms of ‘double counting’.
[13] The Supreme Court said in Kumar v State [2018] FJSC 30; CAV0017.2018 (2 November 2018) that 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 other&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 factorto the exercise anyi>any&of the aggr aggravating factors, and they will then have to factor into the exercise all the aggravating features of the case as well as the mitigating features.
[14] 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.
[15] I have already quoted the observations of the Supreme Court in Kumar v State [2018] FJSC 30; CAV0017.2018 (2 November 2018). This concern on double counting was echoed once again by the Supreme Court in Nadan v State [2019] FJSC 29; CAV0007.2019 (31 October 2019) and stated that the difficulty is that the appellate courts do not know whether all or any of the aggravating factors had already been taken into account when the trial judge selected as his starting point a term towards the middle of the tariff. If the judge did, he would have fallen into the trap of double-counting.
[16] The methodology commonly followed by judges in Fiji is the two-tiered process expressed in the decision in Naikelekelevesi v State [2008] FJCA 11; AAU0061.2007 (27 June 2008) which was further elaborated in Qurai v State [2015] FJSC 15; CAV24.2014 (20 August 2015). It operates as follows:
(i) The sentencing judge first articulates a starting point based on guideline appellate judgments, the aggravating features and seriousness of the offence i.e. objective circumstances and factors going to the gravity of the offence itself [not the offender]; the seriousness of the penalty as set out in the relevant statute and relevant community considerations (tier one). Thus, in determining the starting point for a sentence the sentencing court must consider the nature and characteristic of the criminal enterprise that has been proven before it following a trial or after the guilty plea was entered. In doing this the court is taking cognizance of the aggravating features of the offence.
(ii) Then the judge applies the aggravating features of the offender i.e. all the subjective circumstances of the offender which will increase the starting point, then balancing the mitigating factors which will decrease the sentence, (i.e. a bundle of aggravating and mitigating factors relating to the offender) leading to a sentence end point (tier two).
[17] However, in applying the two-tiered approach the judges should endeavor to avoid the error of double counting as highlighted
by the Supreme Court. The best way obviously to do that is to follow the two-tiered approach diligently as stated above. In this
regard, it is always helpful for the sentencing judges to indicate what aggravating factors had been considered in picking the starting
point in the middle of the tariff and then to highlight other aggravating factors used to enhance the sentence. If the starting point
is taken at the lower end without taking into account any aggravating features, then all aggravating factors can be considered to
increase the sentence.
[18] The observations of the Supreme Court in Qurai v State [2015] FJSC 15; CAV24.2014 (20 August 2015) are also instructive in this regard.
‘[48] The Sentencing and Penalties Decree does not provide any specific guideline as to what methodology should be adopted by the sentencing court in computing the sentence, and subject to the current sentencing practice and terms of any applicable guideline judgment, leaves the sentencing judge with a degree of flexibility as to the sentencing methodology, which might often depend on the complexity or otherwise of every case.
[49] In Fiji, the courts by and large adopt a two-tiered process of reasoning where the sentencing judge or magistrate first considers the objecti60;circumstances of s of the offence (factors going to the gravity of the crime itself) in order to gauge an appreciation of the seriousness of the offence (tier one), and then considers all t60;subjective circumstcumstanceshe offendffender (often a bundle of aggravating and mitigating factors relating to the offender rather than the offence) (tier two), before deriving the sentence to be imposed. This is the methodology adopted by the High Court in this case.
[50] It is significant to note that the Sentencing and Penalties Decree does not seek to tie down a sentencing judge to the two-tiered process of reasoning described above and leaves it open for a sentencing judge to adopt a different approach, such as "instinctive synthesis", by which is meant a more intuitive process of reasoning for computing a sentence which only requires the enunciation of all factors properly taken into account and the proper conclusion to be drawn from the weighing and balancing of those factors.
[51] In my considered view, it is precisely because of the complexity of the sentencing process and the variability of the circumstances of each case that judges are given by the Sentencing and Penalties Decree a broad discretion to determine sentence. In most instances there is no single correct penalty but a range within which a sentence may be regarded as appropriate, hence mathematical precision is not insisted upon. But this does not mean that proportionality, a mathematical concept, has no role to play in determining an appropriate sentence. The two-tiered and instinctive synthesis approaches both require the making of value judgments, assessments, comparisons (treating like cases alike and unlike cases differently) and the final balancing of a diverse range of considerations that are integral to the sentencing process. The two-tiered process, when properly adopted, has the advantage of providing consistency of approach in sentencing and promoting and enhancing judicial accountability, although some cases may not be amenable to a sequential form of reasoning than others, and some judges may find the two-tiered sentencing methodology more useful than other judges.
[19] This court is faced with exactly the same dilemma in this appeal. It is not clear what factors the trial judge had considered in selecting the starting point. Some of them relate to offending and some relate to the offenders. It could only be suspected that at least some factors itemised as aggravating features may have gone into the decision of picking the starting point at 12 years. If so, there is double counting when the sentence was enhanced in consideration of those features for the second time.
[20] I previously had the opportunity of examining a similar complaint in Salayavi v State [2020] FJCA 120; AAU0038 of 2017 (03 August 2020) where I stated:
‘[30] In the present case, however, it is clear what features the learned trial judge had considered in selecting the starting point. Therefore, it becomes clear that there had been double counting when the same or similar factors were counted as aggravating features to enhance the sentence. Like in this case, if the trial judges state what factors they have taken into account in selecting the starting point the problem anticipated in Nadan may not arise. Therefore, in view of the pronouncements of the Supreme Court in Nadan it will be a good practice, if not a requirement, in the future for the trial judges to set out the factors they have taken into account, if the starting point is fixed ‘somewhere in the middle of the range’ of the tariff. This would help prevent double counting in the sentencing process. In doing so, the guidelines in Naikelekelevesi and Koroivuki may provide useful tools to navigate the process of sentencing thereafter.’
[21] If Naikelekelevesi guidance is carefully followed i.e. first set out the objective circumstances i.e. the factors going to the gravity of the offence to pick the starting point and then state the aggravating features of the offender i.e. all the subjective circumstances of the offender to enhance the sentence, the danger of double counting expressed by the Supreme Court may be able to be avoided.
[22] However, 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).
[23] Nevertheless, whether the sentence imposed on the appellant is justified should be decided by the full court despite the sentencing error. If so, the full court would decide what the ultimate sentence should be though I cannot state at this stage affirmatively that is there a reasonable prospect of success in the appellant’s appeal against the sentence on this ground. The full court exercising its power to revisit the sentence under section 23(3) of the Court of Appeal Act would have to decide that matter after a full hearing.
01st (ii) ground of appeal
[24] The appellant argues that the factors identified under paragraph 11 (ii) and (iii) are part of the elements of the offence and should not have been counted as separate aggravating factors.
[25] The Supreme Court in Kumar v State (supra) identified another instance of double counting by stating that many things which make a crime so serious have already been built into the tariff and that puts a particularly important burden on judges not to treat as aggravating factors those features of the case which already have been reflected in the tariff itself. That would be another example of ‘double-counting’, which must be avoided.
[26] The appellant had been charged under section 311(1)(a) of the Crimes Act, 2009 and therefore the fact that the appellant and others were armed could legitimately been taken as an aggravating factor.
[27] As for pre-planning, Wallace has laid down ‘premeditation and some planning’ as an additional aggravating factor (see paragraph [26(iii)]. ‘Coming prepared as a group to counter opposition’, it appears, may not be exactly the same as simply committing the robbery in the company with one or more other persons which refer to the number of participants to make a simple robbery to be an aggravated robbery and not the manner in which the robbery is carried out. Section 311(1)(a) refers only to the number of people but the manner in which the robbery is executed by that group may be an additional aggravating factor. In this context, the comments of the full bench on a similar ground of appeal in Nadavulevu v State [2020] FJCA 14;AAU119 of 2015; 115 of 2015; 129 of 2015 (27 February 2020) could be re-examined by the full court while considering this appeal. My comments in Cikaitoga v State [2020] FJCA 99; AAU141 of 2019 highlighted by the appellant was made in relation to the fact that the offence was committed in a group had been considered as an aggravating factor.
[28] Therefore, I do not think that this ground of appeal has a reasonable prospect of success.
Order
1. Leave to appeal against sentence is allowed.
........................................................
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
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