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Ratumaiya v The State [2006] FJCA 21; AAU0060.2005S (24 March 2006)

IN THE COURT OF APPEAL FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL NO. AAU0060 of 2005S
(High Court Criminal Action No. HAA0091 of 2005L)

BETWEEN:

SAKEASI RATUMAIYA
Appellant

AND:

THE STATE
Respondent

Coram: Scott, JA
Stein, JA
Ford, JA

Hearing: Monday, 20 March 2006, Suva

Counsel: Appellant in Person
Mr. K. Tunidau for the Respondent

Date of Judgment: Friday, 24 March 2006, Suva

JUDGMENT OF THE COURT

Introduction

[1] On 15 February 2005, following a guilty plea, the appellant was convicted in the Magistrates' Court at Lautoka on one charge of bulk store breaking, entering and larceny. He was sentenced to two years imprisonment suspended for three years.

[2] The State then appealed the decision to the High Court. On 8 July 2005 the judge upheld State Counsel's submission that the sentence was 'manifestly lenient'. In lieu, the judge imposed a sentence of two years imprisonment to be consecutive to any sentence that the accused may have been serving.

[3] The appellant now appeals against that sentence on the principal ground of the disparity of sentence given to his co-offender.

Background

[4] In the early morning hours of 26 November 2004, the appellant and his co-accused broke into a container which was being used as a bulk store by the Rajenda Supermarket Foodhall at Lautoka. The pair stole items of groceries and other goods totalling $1,144.85.

[5] At the time of the offending, the appellant was 27 years of age, married with two children. His co-accused was aged 24. Both worked as shoeshine boys. Both, according to the record of proceedings, had nine previous convictions.

[6] The appellant and his co-accused appeared in the Magistrates' Court at Lautoka on 15 December 2004. They were not represented by legal counsel. The co-accused pleaded guilty. He was fined $80 and sentenced to 12 months imprisonment suspended for three years.

[7] The appellant originally pleaded not guilty but when his case was called again before the same resident magistrate on 14 February 2005, he changed his plea to guilty. He was convicted and sentenced to two years imprisonment suspended for three years.

[8] On 11 March 2005, the Director of Public Prosecutions filed an appeal in the High Court against the sentence imposed upon the appellant only. The stated grounds were that his sentence was manifestly lenient and it did not accord with sentencing principles.

[9] The hearing of the appeal took place before Justice Govind on 8 July 2005. Again, the appellant was unrepresented. The judgment was brief and we set it out in full:

'The respondent pleaded guilty to a charge of store breaking entering and larceny. He was with others when the complainant's store was broken into and goods to the value of nearly $1,200.00 was stolen.

He was sentenced to two years imprisonment suspended for three years. All the goods stolen were recovered.

The State appeals that sentence. I notice that the accused pleaded guilty and all the property stolen was recovered. However the sentence of two years suspended prison term, was in my view, inappropriate and manifestly lenient.

Housebreaking and store break-ins are very serious and recurring offences.

The respondent has been given suspended sentences before.

I agree that in this case the sentence was manifestly lenient. I therefore set aside the sentence imposed by the learned trial magistrate and in lieu sentence the accused to two years imprisonment to be consecutive to any sentence that he may be serving.'

Submissions for the State

[10] State Counsel's written submissions were brief. He told us the reason the State had appealed the appellant's sentence only was because, at the time of the offending, the appellant was serving a sentence extramurally which means that he was serving the final months of a prison term out of custody subject to good conduct conditions. That extramural sentence was due to expire on 28 July 2001. Although the High Court judge was informed that the appellant was 'with others' at the time of the break-in, State Counsel accepts that he was not informed about the co-accused’s sentence in connection with the offending in question or his previous record.

[11] Before us, State Counsel submitted:

'1.1. Disparity of sentence was not an issue in the appeal before the High Court.

1.2. It is submitted that there are reasonable grounds for his Lordship's judgment to justify disparity of sentence. These were not considered by the sentencing magistrate in his sentence.'

[12] The 'reasonable grounds' were said to be: (a) 'public interest' -- 'housebreaking and store break-ins is a very serious and recurring offences,' and (b), 'recidivism' -- 'the respondent has been given suspended sentences before.'

[13] The first submission begs the question why was it not an issue? The most obvious answer appears to be because State Counsel failed to disclose all the relevant facts to the judge.

[14] The so-called 'reasonable grounds' of public interest and recidivism for justifying the disparity of sentence, do not stand up to scrutiny. According to the information before the sentencing magistrate, the appellant and his co-accused had the same number of previous convictions which included, in both cases, a conviction for breaking and entering. Both had previously been given suspended sentences.

[15] We would add that, resulting from queries raised during the appeal hearing, we have now been provided by State Counsel with an up-to-date list of previous convictions for the appellant and his co-accused. It would appear from the list that at the time of the offending the appellant had twelve previous convictions and his co-accused nine. That record was not put to the appellant, however, nor did it represent the situation facing the sentencing magistrate. For those reasons, in our deliberations, we have put the document to one side.

Legal Considerations

[16] In the recent case of Bote v The State [2005] FJCA 58; Criminal Appeal No. AAU0011 of 2005, this Court observed:

'The parity principle applies where the sentences imposed on co-offenders are so disproportionate as to leave the offender with the larger sentence with a justifiable sense of grievance.'

[17] Blackstone's Criminal Practice (1993) at E 1.12 states the following:

'Where there is disparity between sentences imposed on co-accused, the higher sentence may be reduced on appeal where right-thinking members of the public, with full knowledge of the facts and circumstances, learning of the sentence would consider that something had gone wrong with the administration of justice.'

[18] In the recent New Zealand High Court case of Barnett v Police (unreported) CRI 2005 -- 470 -- 000034 (judgment stated 8 September 2005), Venning J. adopted the principles applicable to issues of parity between co-accused expounded by the New Zealand Court of Appeal in R v Lawson [1982] 2 NZLR 214. After noting that, 'the court would have regard to disparity as a ground of appeal only where the disparity is unjustifiable and gross,' the Judge quoted the following passage from the Court of Appeal judgment:

'Sentencing is not an exact science and the circumstances of one offender can rarely be closely compared with those of another. The sentencing judge must not only consider the relative involvement of the individuals in the offence but also the mitigating factors affecting each. But a marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute. The courts must bear in mind that public confidence in the administration of justice is best preserved if justice appears to be administered even-handedly. It is for this reason that the disparity in sentences imposed on co-offenders may justify a reduction in the sentence imposed on one which would otherwise be appropriate.'

[19] In Barnett, where the appellant had pleaded guilty to a charge of aggravated robbery, the issue before the court was whether the disparity between sentences of three years six months imprisonment for the appellant and two years imprisonment, with leave to apply for home detention, in the case of the co-accused was justifiable and gross.

[20] After considering all the circumstances of the case before him, Venning J. held that the end result, when looked at objectively, was that the sentences were so disparate as to make the appellant's sentence, which otherwise might have been appropriate, inappropriate. In His Honour's words:

'A reasonably minded independent observer aware of all the circumstances of the offence and the offenders faced with that disparity could well consider that there was something wrong.'

The sentence of three years and six months was quashed and substituted by a sentence of two years six months.

Conclusions

[21] We have reached a similar conclusion to the Judge in Barnett. All else being equal, the sentence imposed in the High Court would have been appropriate and well within the range of sentences for the offending in question, having regard, in particular, to the appellant's previous convictions. When compared with the sentence administered to his co-offender, however, the disparity is unjustifiable and gross.

[22] In his written grounds of appeal, the appellant in layman's terminology, commented:

'The appellant just finds it odd that he should be treated relatively harshly on grounds that applied to A2 (the co-accused) but were not invoked against A2.'

[23] We think it likely that an independent minded observer, knowing all the circumstances of the case, would also find the disparity 'odd'.

Result

[24] The appeal is allowed. The sentence of two years imprisonment imposed on 8 July 2005 is quashed. As the appellant has served approximately 8 months of the two-year sentence, we consider that justice can best be achieved if we substitute a sentence of one year imprisonment suspended for three years as from today's date. We order accordingly.

Scott, JA
Stein, JA
Ford, JA

Solicitors:

Appellant in Person
Office of the Director of Public Prosecutions, Lautoka for the Respondent