IN THE HIGH COURT OF FIJI AT SUVA
APPELLATE JURISDICTION

Criminal Appeal Case No. HAA 084 of 2008

BETWEEN:

MALAKAI MIRA

AND:

THE STATE

Ms N. Ratakele for the State
Appellant in person

Date of Hearing: 31 October 2008.

RULING

1.	Malakai Mira, this is your appeal against sentence in Nausori Magistrates Court Criminal Case No: 0401/2008. In that case you were sentenced to 3 years imprisonment on 15 July 2008.

2.	You submitted a petition of appeal which was filed on 4 August 2008: a timely appeal.

Background

3.	You were charged with one count of Robbery With Violence, contrary to section 293(1) of the Penal Code Cap 17. The particulars of the offence were that you with two others on 30 June 2008 at Sawani, Nausori in the Central Division robbed one Arun Prasad s/o Hari Prasad of cash $230; 1 Nokia Mobile Phone valued at $259; a Taxi Meter valued at $345; all to the value of $834 and immediately before such robbery did use personal violence to the said Arun Prasad.

4.	On 14 July 2008, when the case was first called and the charge was read and explained to you, you informed the court that you understood it. You pleaded not guilty. You also elected trial in the Magistrate Court. However on 15 July 2008 before another Magistrate you pleaded guilty after informing the court that you took part in the robbery and that you were under no pressure to plead guilty.

5.	The learned Magistrate accepted your guilty plea as unequivocal and convicted you as charged. Your sentence was 3 years imprisonment.

Appellant’s submission

6.	You have submitted that your sentence was harsh and excessive for the following reasons:

i)	The learned Magistrate did not consider your guilty plea;
ii)	The learned Magistrate did not consider whether a shorter custodial sentence was called for and would meet the interests of protecting the public;
iii)	The learned magistrate did not carefully consider the mitigating factors in the case before sentencing;
iv)	The learned Magistrate did not consider that the appellant was unrepresented.

7.	During the hearing of the appeal you submitted that your co-offenders who were charged separately were given a lighter sentence, namely 2½ years imprisonment, whereas you were sentenced to 3 years imprisonment. This disparity in the sentence is unfair you claim.

Respondent’s submission

8.	Counsel for the respondent has field written submission covering each of the grounds raised by the appellant. These submission were most useful indeed and I record my appreciation to Ms Ratakele for it. The essence of the State’s response are as follows:

i)	As regards ground of appeal alleging that the learned Magistrate did not consider the appellant’s guilty plea, the State submits that the 1½ years was discounted for the guilty plea and that is adequate;

ii)	As regards, the accounting of the mitigating factors by the learned Magistrate, the state submits that 6 months was discounted from the sentence and that was sufficient;

iii)	As regards, the claim that the learned Magistrate should have given a shorter custodial sentence that would have met the interest of justice in this case, the state submitted that the sentence in this case was consistent with proper approach, consistent with the relevant tariff sentences;

iv)	As regards, the claim by the appellant that the learned Magistrate should have taken into consideration the fact that he was not represented by a legal practitioner, the State submits that right to counsel is not an absolute right and in this case the appellant has not provided evidence of prejudice arising from such lack of legal representation.

9.	In conclusion, the State submits that in the light of their submission, the sentence was neither harsh nor excessive; it was proper.

Appeal Determination

10.	I shall now review the sentence passed by the Learned Magistrate. I begin with her choice of starting points, which was 4 years in a tariff range of 4 to 7 years imprisonment as was approved by the Court of Appeal in Sakiusa Basa (2006) FJCA 23. There were no reasons provided in the ruling to show how that 4 years was the preferred starting point. It should be stressed that a sentencing court must provide the basis of choosing a starting point for a sentence.

11.	However, having reviewed the facts admitted to by the appellant and the need for sentences to be a deterrent for future offenders, I find the starting point on the low side. But I would not disturb the learned Magistrates choice.

12.	I would have chosen a starting point of 6 years, given the recent reviews of sentencing tariff for robbery with violence, by the Supreme Court in Jioji Waqasaqa [2006] FJSC 6; the Court of Appeal in Mitieli Naikelekelevesi [2008] FJCA 11 and the High Court in Rokonabete[2008] FJHC 226; State v Kelemedi Nataruku [2008] FJHC 244. This new sentence tariff should now be followed to ensure uniformity in approach to sentencing.

13.	The appellant did complain about the choice of starting point for sentence determination in this case. 

14.	During the appeal hearing I specifically asked the appellant whether there were mitigating factors that was submitted to the learned Magistrate, which he felt should have been considered and it was not. The appellant could not point to any. On this ground, I agree with the respondent that it has no merit and I dismiss it.

15.	As regards, the submission that a shorter custodial sentence should have been passed. When the House of Lords in R v Bibi [1980] 1 WLR 1193, per Lord Lane at page 1195 said:

‘ …sentencing courts must be particularly careful to examine each case to ensure, if an immediate custodial sentence is necessary, that the sentence is as short as possible, consistent only with the duty to protect the interest of the public and to punish and deter the criminal.’

This statement of principle was especially relevant in cases involving young first offenders and where there were overcrowding in the prison facilities. The circumstances of the present case are different. Secondly, the sentence determined by the learned Magistrate was the outcome of an approach that is consistent with established case law and approach in tariff sentencing in the Fiji court.

16.	I find that this ground has no merit and I dismiss it.

17.	There is one issue that neither party raised that was incorrect in the sentence determination of the learned Magistrate in this case. The consideration of the appellant’s three previous convictions as one of the aggravating factors. It should now be clear to all sentencing courts that in sentencing, previous conviction are not relevant aggravating factors:see Emirami Saurara v The State [2008] FJSC CAV 020 of 2007 followed in Jonetani Sereka v The State [2008] FJHC 88. 

18.	But in my view and in the light of my earlier observation about the lower starting points, I consider the 1 year addition to the final sentence is still proper. I will not adjust the sentence because of this.

19.	As regards the disparity in the sentence the learned Magistrate on the facts before her concluded that you were the main actor in the criminal acts for which you were charged with, the other co-offenders. I have no basis for overruling that determination of facts. On that basis the disparity is justified and is not unreasonable. A reasonably minded independent observer aware of all the circumstances of the offence and the roles you each played, would find that the disparity is not wrong: Ratumaiya v The State [2006] FJCA 21. This ground is dismissed as having no merit.
 
20.	In conclusion, the appeal against sentence in this instance has no merit and is dismissed.

ORDERS

21.	I make the following Order:

i)	The appeal is dismissed and the sentence in the Magistrate Court is upheld.

Isikeli Mataitoga
JUDGE

At Suva
28 November 2008