IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. Nos: HAA0079, 80, 81 & 82 of 2005

Between:

EPELI LABALABA
Appellant

And:

THE STATE
Respondent

Counsel: Appellant in Person
Ms V. Lidise for State

Hearing: 5th August 2005
Judgment: 12th August 2005

JUDGMENT

The Appellant was convicted on four separate files of robbery with violence and unlawful use of motor vehicle. He was sentenced to a total of 8 years imprisonment on the 21st of April 2005. He appeals against the totality of that term. The learned Magistrate sentenced on all files together. Similarly I will deal with all four appeals together.

In Case No. 116 of 2003, he was charged with another of robbery with violence. It was alleged that between the 2nd and 3rd of May 2003 at Navua, the Appellant was armed with an offensive weapon and robbed Alfred Benjamin McGowen of items to the total value of $1,750.00. The Appellant and his accomplice initially pleaded not guilty. There were a large number of adjournments. The reasons for them are not on the court record. However, on the 20th of January 2004, the Appellant’s accomplice indicated that he wished to change his plea. He was sentenced on the 2nd of March 2004 to 4 year's imprisonment. The Appellant maintained his plea of not guilty, and the trial commenced on the 11th of May 2004.

The complainant gave evidence that he was at home with his wife on the 2nd of May 2003 when two men woke them up in the middle of the night. They hit him with a knife and asked for money. They flashed lights on his face when he looked up and tied him up as he lay face down on the bed. They blindfolded him. They then found his money and counted it, sitting on the floor and laughing. They then took a number of other items including his car. As they took his car, he managed to loosen his hands, run out and fight with them. However, one man helped the other and they both ran away leaving the car behind. The complainant called the police. Two weeks later, the police brought two men to his home. They showed the police how they had committed the offence. One of them was the accused.

The case was then further adjourned until the Appellant changed his plea on the 17th of February. The facts on all files were read out on the 11th of April 2004 and mitigation heard on the 15th of April.

In Case No. 117 of 2003, he was charged with three counts of robbery with violence. It was alleged that between the 22nd and 23rd of June 2003 being armed with offensive weapons, he and an accomplice robbed Prince Gopal Lakshman, Rohini Lata Lakshman and Prince Jatin Lakshman of a number of items at Navua. The facts are unfortunately not on the record but they were read out and agreed to. The learned Magistrate referred to them in his sentencing remarks. He said that he threatened and robbed the complainants and tied them up in their home before making off with the items specified in the charge. The value of the items stolen totalled over $2,000.00 of which $1,520.00 worth of the property was recovered.

In Case No. 118 of 2003, the Appellant was charged with two counts of robbery with violence on Arthur Thomas and Charlotte Thomas of Navua and one count each of unlawful use and driving without a licence. Again, he acted with an accomplice. The date of the offences was the 28th of April 2003.

The facts on this case were that the two complainants were asleep in their home at Pacific Harbour when the Appellant and his accomplice entered armed with a cane knife, a screw driver and pair of scissors. They were wearing gloves and balaclavas. They threatened the complainants, made them lie down, and tied up their legs and hands. They then robbed them of items to the value of about $18,000.00. They took the family car and drove off in it, abandoning the vehicle off the road at Wainadoi. There was no recovery of the items stolen.

In Case No. 119 of 2003 the Appellant was charged, with two others, with robbery with violence, and unlawful use. He was alleged to have robbed Josateki Koroi of $1,194.00 worth of items being armed with offensive weapons, on the 19th of July 2003.

The facts were that he and the others entered the home of the complainant, a 71-year old man by removing louvre blades. In this case, the Appellant did not plead guilty until after the complainant gave evidence. His account of the robbery was harrowing. He said he woke up to find a masked man with a cane knife, standing at the foot of his bed. There was another man with him, who sat on the bed and watched. They took the money from his wallet and searched the house. They tied up the complainant and his wife, took his car and drove away. The witness described the fear he and his wife experienced as a result of the robbery.

The Appellant has a number of previous convictions dating from 1992. They range from larceny of chicken to shop breaking. His last conviction was for shop breaking on the 6th of October 2001 for which he received a sentence of 2 years imprisonment. In mitigation he said he had learnt a lot from his time in prison. He submitted written mitigation expressing remorse and asked for a lenient sentence. He had spent 12 months in remand while awaiting trial. In his written mitigation, which is on the court file, he asked to have this remand period taken into account and that the court should consider the fact that the offences he had committed were out of character for him. He said he had elderly parents and that he wanted to start a new life cultivating land in Navua. He was then a serving prisoner, due for release in August 2005.

The learned Magistrate sentenced him on all files together. He referred to the fact that all the robberies were armed, that they were well-planned, that they occurred at night at the homes of people in Pacific Harbour, and that on two counts he committed the offences on the vulnerable. He took into account the pleas of guilty but pointed out that the pleas were not rendered at the first opportunity. On all counts of robbery, he picked a starting point of 7 years imprisonment. After adjusting for mitigating and aggravating factors, he sentenced the Appellant to 8 years imprisonment.

The grounds of appeal are that the learned Magistrate erred in ordering consecutive sentences, that he erred in failing to give adequate weight to the mitigating factors, that other offenders sentenced to comparable offences received more lenient sentences, and that the overcrowded conditions of our prisons should have been considered. In court he said that subsequent to the term imposed in this case, he was sentenced to a further 9 months in another file, for house breaking. He said that the total was excessive.

State counsel opposes the appeal pointing to the serial offending, the normal tariff for home invasions and the lack of any real mitigating factors.

In Waisake Matahau Uluikadavu Crim. App. HAA0035 of 2004, Winter J considered an 8 year total term, imposed for one count of robbery with violence. That too was a case of robbery at a home in Pacific Harbour. The victim was 67 years old, the appellant committed the offence with another man but there was no violence actually inflicted and no use of weapons. On appeal against sentence, his Lordship considered the Court of Appeal decision in Raymond Sikeli Singh v. The State AAU0008 of 2000S and the decision of Gates J in State v. Lebobo HAC0016 of 2002S, and identified the tariff as being between 6 to 8 years. He said that a starting point of 10 years was too high, and after considering mitigating and aggravating circumstances, reduced the sentence to one of 6 years imprisonment.

In Lebobo Gates J said in his sentencing remarks:

“It is plain that the community in Fiji is increasingly concerned at crimes committed during “home invasions”. By these sentences the Courts must strive to protect all persons in their homes. But the Courts must take an even stronger line with crimes committed against vulnerable persons in their homes such as the young or the old, the weak or the infirm.”

The learned Magistrate in this case correctly identified the starting point from within the tariff. Indeed in Case No. 119 of 2003, he might have been justified in picking an even higher starting point, hence of the age of the victims. After making all adjustments, including taking into account the guilty plea and family circumstances, he arrived at 8 years imprisonment on each count, to be served concurrently with each other. He did not err. The tying up of the victims, the use of cane knives and screw drivers and the value of the items stolen were part of a series of offences committed which terrorised a community at Pacific Harbour. Further, the Appellant did not act alone. He acted with others. The sentences passed were justified on the facts. They did not exceed the tariff.

The Appellant submitted that the sentences were to be served consecutive to the sentence he was then serving. From the record, it appears to run from the date it was imposed. However in the absence of any specific order that the sentence should run concurrent to the previous tariff imposed, section 28(4) of the Penal Code applies. That subsection provides:

“Where a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence of imprisonment which is passed upon him under the subsequent conviction shall be executed after the expiration of the former sentence, unless the court directs that it shall be executed concurrently with the former sentence or any part thereof:”

The Appellant said that when the sentence was passed he had served 5 months of a 9 month term (imposed after a successful appeal against a two year term) and that the 8 year term would not start to run until he had served his 9 month term. That offence was one of school breaking. Given the short period remaining, I consider that the 8 year term should have run concurrent to the remaining 4 months and I substitute an order that the 8 year term run concurrent to the 9 month term he was serving at the time he was sentenced. I am unable to make any orders about any subsequent sentence passed however because there is no appeal before me in relation to any other case. If he was subsequently sentenced to an 18 month term for house breaking, he will need to file a separate appeal against the order for consecutive terms.

This appeal succeeds to the extent that the 8 year term imposed in the cases should be calculated to run concurrently to any term the Appellant was already serving when he was sentenced on the 21st of April 2005.

Nazhat Shameem
JUDGE

At Suva
12th August 2005