High Court of Fiji

[17] Theb>Therefore, it is well established law that before this Court can interfere with the sentence passed by the Ld Magistrate; the Appellant must demonstrate that the Learned Magistrate fell into error onor on one of the following grounds:

(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.

[18] In Sharma v. State [2015] FJCA 178; AAU48.2011 (3 December 2015) the Fiji Court of Appeal discussed the approach to be taken by an appellate court when called upon to review the sentence imposed by a lower court. The Court of Appeal held as follows:

“[39] It is appropriate to comment briefly on the approach to sentencing that has been adopted by sentencing courts in Fiji. The approach is regulated by the Sentencing and Penalties Decree 2009 (the Sentencing Decree). Section 4(2) of that Decree sets out the factors that a court must have regard to when sentencing an offender. The process that has been adopted by the courts is that recommended by the Sentencing Guidelines Council (UK). In England there is a statutory duty to have regard to the guidelines issued by the Council (R –v- Lee Oosthuizen [2009] EWCA Crim 1737; [2006] 1 Cr. App. R.(S.) 73). However no such duty has been imposed on the courts in Fiji under the Sentencing Decree. The present process followed by the courts in Fiji emanated from the decision of this Court in Naikelekelevesi –v- The State (AAU 61 of 2007; 27 June 2008). As the Supreme Court noted in Qurai –v- The State (CAV 24 of 2014; 20 August 2015) at paragraph 48:

" The SentencingPenalties Decree does not provide specific guidelines as toas 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."

[40] In the same decision the Supreme Court at paragraph 49 then briefly described the methodology that is currently used in the courts in Fiji:

"In Fiji, the courts by and large adopt a two-tiered process of reasoning where the (court) first considers the objective circumstances 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 the subjective circumstances of the offender (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."

[41] The Supreme Court then observed in paragraph 51 that:

"The two-tiered process, when properly adopted, has the advantage of providing consistency of approach in sentencing and promoting and enhancing judicial accountability _ _ _."

[42] To a certain extent the two-tiered approach is suggestive of a mechanical process resembling a mathematical exercise involving the application of a formula. However that approach does not fetter the trial judge's sentencing discretion. The approach does no more than provide effective guidance to ensure that in exercising his sentencing discretion the judge considers all the factors that are required to be considered under the various provisions of the Sentencing Decree.

....................

[45] In determining whether the sentencing discretion has miscarried this Court does not rely upon the same methodology used by the sentencing judge. The approach taken by this Court 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. It follows that even if there has been an error in the exercise of the sentencing discretion, this Court will still dismiss the appeal if in the exercise of its own discretion the Court considers that the sentence actually imposed falls within the permissible range. However it must be recalled that the test is not whether the Judges of this Court if they had been in the position of the sentencing judge would have imposed a different sentence. It must be established that the sentencing discretion has miscarried either by reviewing the reasoning for the sentence or by determining from the facts that it is unreasonable or unjust.”

[19] It must be emphasized that the principles enumerated in the above case authorities should be considered in the light of Section 247 of the Criminal Procedure Act which provides that “No appeal shall be allowed in the case of an accused person who has pleaded guilty, and who has been convicted on such plea by a Magistrates Court, except as to the extent, appropriateness or legality of the sentence.”

[20] The Appellant states that the Learned Magistrate erred in law and in fact when he made both sentences consecutive without giving a cogent reason for making the sentences consecutive. The two sentences he is referring to are the sentence in this matter and the sentence imposed in the connected Criminal Appeal HAA 16 of 2020 (Magistrate’s Court of Suva Criminal Case No. CF 43 of 2019).

[21] The Appellant is completely misconceived in law. Firstly the sentences in the said two cases were imposed by two different Magistrates on different dates. The sentence in the instant case was imposed by Resident Magistrate Mr. Asanga Bodaragama, on 24 October 2019. The sentence in the connected criminal appeal matter was imposed by Resident Magistrate Mr. Kashyapa Wickaramasekara, on 10 February 2020.

[22] Therefore, at the time the sentence in the instant case was being imposed on the Appellant, which was on 24 October 2019, there was no possibility for the Learned Magistrate to even consider making the said sentence concurrent with the sentence in the connected criminal appeal matter which was pending before another Magistrate.

[23] The Appellant alleges that the Learned Magistrate erred in law and in fact when he failed to consider the totality principle and by making the sentences consecutive. The Learned Magistrate has given justifiable reasons for making this sentence consecutive with two other custodial terms of imprisonment.

[24] Section 22 of the Sentencing and Penalties Act No. 42 of 2009 (“Sentencing and Penalties Act”) deals with concurrent or consecutive sentences. For ease of reference the section is reproduced below:

22.-(1) Subject to sub-section (2), every term of imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of imprisonment.

(2) Sub-section (1) does not apply to a term of imprisonment imposed-

(a) in default of payment of a fine or sum of money;

(b) on a prisoner in respect of a prison offence or as a result of an escape from custody;

(c) on a habitual offender under Part III;

(d) on any person for an offence committed while released on parole; or

(e) on any person for an offence committed while released on bail in relation to another offence.

(3) Every term of imprisonment imposed on a person in default of payment of a fine or sum of money shall, unless otherwise directed by a court, be served-

(a) consecutively on any uncompleted sentence imposed on the person in default of payment of a fine or sum of money; but

(b) concurrently on any uncompleted sentence imposed on that person.

(4) Every term of imprisonment imposed on a prisoner by a court in respect of a prison offence or an escape offence must, unless otherwise directed by the court based on exceptional circumstances, be served consecutively on any uncompleted sentence of imprisonment.

(5) Every term of imprisonment imposed on a prisoner by a court in respect of an offence committed while released on parole in relation to another sentence of imprisonment imposed on that person must, unless otherwise directed by the court based on exceptional circumstances, be served consecutively on any uncompleted sentence of imprisonment which the offender may be required to serve in custody on cancellation of the parole order.

(6) Every term of imprisonment imposed on a prisoner by a court in respect of an offence committed while released on bail in relation to any other offence must, unless otherwise directed by the court based on exceptional circumstances, be served consecutively on any uncompleted sentence of imprisonment.

Emphasis is mine.

[25] From the above it is clear that there are numerous situations where a Court could impose a consecutive sentence on an offender. In this matter the Learned Magistrate has specifically provided reasons as to why he is not imposing a concurrent sentence on the Appellant. The Learned Magistrate has stated as follows:

“11..... On 17.10.2019 this Court sentenced you for two separate custodial terms of imprisonment in CF 1120/2016 and in CF 2138/2018.

12. You are already a serving prisoner. As per Section 22 (1) of the Sentencing and Penalties Act “every term of imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of imprisonment”. However, this provision is subject to sub-section (2). As per section 22 (2) (e) sub-section (1) does not apply “on any person for an offence committed while released on bail in relation to another offence.”

13. I observe this offence was committed on 24.08.2019. Thus, this offence was committed while you were released on bail for the aforesaid CF 1120/2016 and in CF 2138/2018. Therefore section 22 (1) has no application in this instance.

14. As I already held that your past criminal record is a clear testimony that you are a serious threat to the society as you have a tendency to commit crimes while you are at large. You commit criminal offences at regular intervals at the expense of vulnerable victims. Therefore, I order this sentence to take effect consecutive to any other unfinished sentences.”

[26] The Appellant further states that the Learned Magistrate erred in law and in fact when he considered the previous convictions of the Appellant as an aggravating factor for his sentence and by doing such the Magistrate has breached the sentencing principles.

[27] This Court has gone through the sentence imposed by the Learned Magistrate in this case. Although the Learned Magistrate has referred to the Appellant’s past criminal record, he has not considered this as an aggravating factor in deciding the sentence to be imposed on him. The Learned Magistrate has correctly stated that the Appellant will not earn any discount for past good conduct.

[28] Considering all the above facts and circumstances, I am of the opinion that the Appellant’s Grounds of Appeal against sentence are without merit. Therefore, I see no reason to interfere with the final sentence imposed on the Appellant by the Learned Magistrate.

CONCLUSION

[29] In light of the above, the final orders of this Court are as follows:

1. The Appeal against sentence is dismissed.
2. The sentence imposed by the Learned Magistrate, Magistrate’s Court of Suva is affirmed.
   

Riyaz Hamza

JUDGE

HIGH COURT OF FIJI

At Suva
This 13^th Day of October 2020

Solicitors for the Appellant : Appellant in Person.
Solicitors for the Respondent: Office of the Director of Public Prosecutions, Suva.