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Bhan v The State [2005] FJHC 187; HAA0062J.2005S (15 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0062 of 2005S

Between:

AVIKASH BHAN
f/n Joytindra Bhan
Appellant

And:

THE STATE
Respondent

Hearing: 8th July 2005
Judgment: 15th July 2005

Counsel: Mr. M. Raza for Appellant
Ms V. Lidise for State

JUDGMENT

The Appellant appeals against his sentence of 8 years imprisonment for 2 counts of robbery with violence. He was charged as follows:

Count 1

Statement of offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(b) of the Penal Code, Cap. 17.

Particulars of Offence

PAULIASI BOTE and AVIKASH BHAN s/o Joytindra Bhan on the 5th day of August, 2003 at Suva in the Central Division, robbed Peter Boshier of 1 laptop valued at $1,100.00, 1 transformer valued at $330.00, 2 mobile phones valued at $400.00, 1 pair of sunglasses valued at $440.00, kitchen knife valued at $10.00, 1 wallet valued at $33.00, 1 calculator valued at $110.00, 1 sports bag valued at $10.00, 1 pair of binoculars valued at $165.00, 1 camera valued at $880.00, 1 radio valued at $66.00 and cash to the value of $374.00, to the total value of $3,698.00 and at the time of such robbery did use personal violence to the said Peter Boshier.

Count 2

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(b) of the Penal Code, Cap. 17.

Particulars of Offence

PAULIASI BOTE and AVIKASH BHAN s/o Joytindra Bhan on the 5th day of August, 2003 at Suva in the Central Division, robbed Sheryl Boshier of 1 pair of earring valued at $17.00, 2 ladies wrist watch valued at $300.00, 1 gold bracelet valued at $1,100,00 and 1 ladies bangles valued at $1,100.00 to the total value of $2,517.00 and immediately before such robbery threatened to use personal violence on the said Sheryl Boshier.

The grounds of appeal are that the learned Magistrate erred in law in ordering that the 4 year terms imposed on each count be served consecutively, and that the total term of 8 years imprisonment is harsh and excessive.

The facts of the case were that on the 5th of August 2003, the complainants, who are husband and wife, were in their home at Suva Point, when they were attacked by the Appellant and an accomplice, Pauliasi Bote. They entered the house through the open rear door, threatened the complainants with a knife, and punched the complainant on Count 1. As a result he received injuries on his face including injuries to his left eye.

The Appellant and his accomplice then stole the items named in the charges, to the total value of $6,215 on both counts. On Count 2, they pointed a knife at the complainant and forced her to hand over her jewellery.

The matter was reported to the police, and both men were arrested and interviewed. They both confessed.

These facts were admitted. In mitigation the Appellant said he was 25 years old, that he had left his family in 1999, and that he was supporting himself. He said his family had disowned him and that he had co-operated with the police to ensure that some of the property was recovered. He expressed remorse and said that he had committed the offences because he needed the money. He had 4 previous convictions, one of which was for robbery with violence.

The court then accepted a victim impact statement from the complainants. It stated that the complainants were traumatised by the robberies, and that they no longer felt secure in their own homes. The learned Magistrate then sentenced both the Appellant and his accomplice.

She commenced her remarks by saying: “I will deal with both counts using the totality principle in that the two counts are to be considered together, as part and parcel of one transaction or act.” She then said that the sentencing tariff for a single count of robbery with violence without firearms was 4 to 7 years. Higher sentences would be justified where injuries were caused, where the victim was in some way vulnerable or where children were the victims. She then said:

“Applying the above principles to the present case a range of 4 years to 8 years on each count is to my mind appropriate. However, my jurisdiction only allows me to issue a maximum sentence of 5 years imprisonment on a single count of robbery with violence. Pursuant to section 12(2)(b) of the Criminal Procedure Code, where more than one offence is charged, my jurisdiction increases to a maximum sentence of 10 years imprisonment.”

She then referred to the victim impact statements, saying that the experience was clearly a terrifying one for the victims. She took into account aggravating and mitigating factors including the pleas of guilty and sentenced them each to 4 years imprisonment on each count to be served consecutively.

Counsel for the Appellant has several objections to the learned Magistrate’s approach. Firstly, he said that she made no reference to a starting point, as is now a recognised sentencing practice. Secondly he asked why the Magistrate had accepted a victim impact statement from the victims, when this was not a recognised practice in the Magistrates’ Court. Thirdly, he said that the report, and the sentencing remarks used words such as “dangerous” and “anti-social” which were unnecessarily emotive. Lastly he said that the offences charged referred to one robbery, and that under the one transaction rule, concurrent sentences should have been passed. He suggested that the consecutive sentences were ordered because the victim on Count 1, was a judge of the New Zealand District Court.

State counsel responded by way of written submissions. She said that when the sentences were imposed, the jurisdiction of the Magistrates’ Court was limited to 5 years on each count. The tariff for robbery with violence, on the other hand was 4 to 7 years. She submitted that the 8 year sentence reflected the totality of the offending because this was a case of home invasion, weapons were used and the value of the stolen property was $6,215.00. She referred to the decision of Winter J in Waisake Matahau Uluikadavu v. The State Crim. Appeal No. HAA0035 of 2004, in which the starting point for home invasions was said to be from 6 to 8 years. In that case, the victim was 67 years old, and the value of the property stolen was $870.00. The 8 year term imposed was reduced to 6 years. The offender was of previous good character and had entered an early guilty plea.

In Pauliasi Bote v. The State Crim. App. No. HAA0100 of 2004S, I considered an appeal by the Appellant’s accomplice. He was charged with additional offences including one of conspiracy. I quashed the conviction for conspiracy on the ground that the facts had failed to disclose the offence charged. I considered the 8 year term imposed for the robbery offences and said:

“Not only are these sentences individually correct in principle, they are also proportionate to the total offending. If the learned Magistrate had not been constrained by her limited jurisdiction, she might have sentenced the Appellant to 8 years on each count to be served concurrently. This was a serious case of home invasion, leaving one victim with facial injuries and both victims in a state of psychological trauma and fear.”

In that case, counsel for the appellant had no real objection to the 8 year term imposed. Nor did he raise the matters raised by counsel in this appeal. In the circumstances I must consider the matter afresh.

The learned Magistrate should certainly have picked a starting point. This is now standard procedure in all courts. However failure to do so is not necessarily fatal, if the end result is correct in principle. The reason for specifying a starting point, and aggravating and mitigating factors, is to ensure transparency in the sentencing process. For too long, sentencing was seen by offenders, lawyers and the public, as an arbitrary, “gut-reaction” process. This is no longer the case, provided the sentencer sets out the process he or she followed in arriving at the term imposed. Transparency in the sentencing process leads to uniformity in approach, even if the result differs from offender to offender, depending on the seriousness of the offending and the individual circumstances of the offender. Uniformity of approach leads to greater understanding of the sentencing process, and an end result of justice having been seen to be done. In particular, the offenders must be able to understand the sentencing process.

As I said in Pauliasi Bote, the learned Magistrate’s sentencing remarks were well-researched and reasoned. She did not identify a starting point, but she clearly picked one from within the tariff of 6-8 years. This is the tariff for home invasion cases. She then took into account all aggravating and mitigating circumstances and decided that an 8 year term was justified in total. However, because of her jurisdictional limit, she imposed 4 year consecutive terms on each count. This total term was within the tariff and therefore correct in principle. Thus, her failure to identify a starting point was not fatal.

I accept counsel’s objection to the victim impact statements. It is desirable that the court hears some form of evidence about the impact of the crime on the victim. Victim impact statements are tendered and considered in a number of overseas jurisdictions, as a routine part of the sentencing process. However, they are not customary in Fiji, although the Criminal Procedure Code allows the court to hear any evidence it wishes to assist in the sentencing process. This is regrettable. The impact of the offending on the victim is directly relevant to the sentence. Further, to force the offender to hear of such impact becomes an important part of holding him or her accountable. It is the confrontation of the offender, of the consequences of his or her criminal conduct.

However, when victim impact statements are only tendered in cases where the victim is of a privileged status or well-known to the magistrates and judges who sit in our courts, this differential treatment can suggest an inequality before the law. It can create an impression that it is worse to rob a judge than it is to rob a taxi-driver. Our courts must guard against creating such an impression. In this case, if the sentence imposed had been higher than the tariff and if it appeared that undue weight had been placed on the status of the victims, I would have reduced the term imposed.

However, the learned Magistrate appeared to be scrupulous in adhering to sentencing principles. Although she did take into account the impact of the offending on the victims, she gave equal weight to the injuries inflicted, the value of the property stolen, the apparent lack of remorse shown by this Appellant and the prevalence of robbery cases in Suva. This approach was unexceptionable. In future however, I would advise against the selective use of victim impact statements.

Counsel asked for concurrent sentences. Although the learned Magistrate treated both counts as one transaction in her sentencing remarks, she was in fact entitled to treat them as two offences. The victims were two individuals, and although both lived in the same house as a couple, robbery with violence is an offence committed not on houses, but on people. Thus every threat or act of violence on individuals, constitutes a separate offence. In this case one count involved actual violence, the other, the threat of violence. The 4 year term on each count was lower than the tariff for home invasion cases, but the consecutive terms reflected the totality of the offending. The facts do not suggest that this Appellant’s role in the offending was to a lesser degree than his accomplice’s. Indeed they suggest that their roles were equal and that they acted in concert.

In the circumstances, for the reasons I have given, the appeal against sentence is dismissed.

Nazhat Shameem
JUDGE

At Suva
15th July 2005