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Manakiwai v State [2014] FJHC 709; HAA21.2014 (29 September 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION
CRIMINAL APPEAL CASE NO.: HAA 21 OF 2014

BETWEEN:

POASA MANAKIWAI
Appellant

AND:

THE STATE
Respondent

Counsels: Ms. S. Ratu for the Appellant
Mr. F. Lacanivalu for the Respondent

Date of Hearing: 24 September 2014
Date of Judgment: 29 September2014

JUDGMENT

1. The Appellant was charged before the Ba Magistrate under following count:
   

Statement of Offence

ROBBERY: Contrary to Section 310 (1) (a) (i) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

POASA MANAKIWAI on the 26th day of July, 2013 at Malaqereqere, Sigatoka in the Western Division, stole $355.00 in monies and a Nokia X2 mobile phone valued at $300.00 all to the total value of $655.00 from Amit Kumar and immediately before stealing, he used force on the said Amit Kumar.

2. The Appellant pleaded guilty, convicted and sentenced on 21st May 2014.
   
3. The summary of facts as admitted by the Appellant are:
   

On the 26th day of July, 2013 between 4.30 am to 5.00 am at Malaqereqere, Sigatoka, Poasa Manakiwai (B-1) aged 33 years a fire dancer of Kulukulu, Sigatoka stole $355.00 in monies and a Nokia X2 mobile phone valued at $300.00 all to the total value of $655.00 from Amit Kumar alias Pappu (A-1) aged 34 years a driver of Kulukulu, Sigatoka and immediately before stealing used force on the said (A-1).

(A-1) drives his vehicle registration number CU 628 from the Sigatoka town during night. On the above date and between that times (A-1) was parking his vehicle beside the Sigatoka Mosque. (A-1) was at the 24 hour kava shop when noticed (B-1) standing by his car. (A-1) came and approaches (B-1) where (B-1) stated that he wants to go to Malaqereqere. (A-1) and (B-1) boarded the vehicle and (A-1) drove towards Malaqereqere. (B-1) was sitting in the front passenger seat. When reached at the junction of the Mcmillian company (B-1) told (A-1) to drive inside the junction that goes to the sea side. When (A-1) drove his vehicle about 25 metres inside then (B-1) asked (A-1)'s name and at the same time (B-1) hold the automatic gear of the vehicle and pushed to the park. (A-1) then got out of the vehicle and at the same time (B-1) jumped to the driver's seat and got hold of (A-1) and pushed him on the ground. (B-1) then kicked (A-1) several times on his head, face and other part of the body. After the assault (B-1) demanded money from (A-1) and his mobile phone and (A-1) gave the money and the phone and straight after this (A-1) ran from the scene leaving his vehicle there. (B-1) came after (A-1) but manages to escape from the scene.

(A-1) then went to a neighbor's house and get the assistance and then came with them and took his car from the scene. There was no damage done to the vehicle and only the key was thrown by (B-1).

4. The appellant filed a petition of appeal on 10th June 2014 within time.
   
5. The grounds of Appeal against the sentence are:
   
   • (i) The sentence imposed by the learned Magistrate is manifestly harsh and excessive
   • (ii) The possibility of the sentence to run concurrently to my existing sentence was favourable in my stance yet the learned Magistrate without clear reasons chose to impose the sentence consecutively to my existing term.
     
6. Both parties have filed written submissions.
   

1st Ground

7. The learned Magistrate had taken a starting point of 5 years after following correct Guide line judgments.
   
8. He had added 3 years for the aggravating factors. The aggravating factors identified by the learned Magistrate are:
   
   • (i) Your calculated plan to commit the robbery
   • (ii) Personal violence on the complainant
   • (iii) The nature of injuries suffered as per medical report
   • (iv) The financial loss sustained by the complainant
   • (v) Attack on a driver who is providing essential public service.
     
9. Then 3 years were deducted for the Guilty plea.
   
10. Another 1 year was deducted for the mitigating factors including the age and remorse shown.
    
11. The final sentence was 4 years.
    
12. The Appellant had failed to establish that this sentence is harsh and excessive. There is no merit in this ground and it fails.
    

Ground 2

13. The learned Magistrate had not given any reasons for making the sentence consecutive.
    
14. The Appellant has 7 previous convictions. He has a Burglary case in December 2004 where he was given 12 months imprisonment suspended for 24 months. There is also a case of Robbery with Violence in December 2006 where he was given 3 years imprisonment.
    
15. The Section 22 (1) of the Sentencing and Penalties Decree was given a wide interpretation by the Fiji Court of Appeal in Vukitoga v State [2013] FJCA 19;AAU 0049.2008 (13 March 2013)
    

"[22] The situation that presents itself to the Court therefore, and a proposition advanced by counsel for the appellant is this: there being no guidance from authorities of higher courts on concurrent or consecutive sentencing, we are left only with the legislation (Sentencing and Penalties Decree) which states that subsequent sentences must be served concurrently with existing sentences.

[23]Guidance for this situation can still be gleaned from the earlier decision of the Supreme Court in Joji Waqasaqa v State [2006] FJHC 6 CAV 0009U.2005S (8 June 2006) by analogy. If the Court said (and it did) that where the "default" position was consecutive, then a Court would have to give "reasoned justification" to depart from that position in making sentences concurrent, then a Court must now when the "default" position is concurrency make a reasoned justification to depart from the "default" position in making sentences consecutive or partly consecutive."

13. The learned Magistrate had not given any reasons for making the sentence consecutive.
There is no reasoned justification for making the sentence consecutive.

14. This background warrants this Court to exercise its powers in terms of Section 256 (2) (a) of the Criminal Procedure Decree to vary the operation of the sentence ordered by the learned Magistrate. Thus, sentence in this case is made concurrent to the sentence already served by the appellant. The non-parole period of 3 years and 6 months is operative from the date of sentence that is 21st May 2014.
    
15. Appeal allowed. The operation of the sentence varied.
    

Sudharshana De Silva
JUDGE

At Lautoka
29th September 2014

Solicitors : Office of the Legal Aid Commission for the Appellant
Office of the Director of Public Prosecution for Respondent