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Bulitaiwaluwalu v State [2012] FJCA 80; AAU0046.2010 (5 November 2012)

IN THE COURT OF APPEAL
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.AAU0046 OF 2010
[High Court Criminal Action No. HAC0069 of 2009]

BETWEEN:

TOMASI BULITAIWALUWALU
Appellant

AND:

THE STATE
Respondent

Counsel : Appellant in Person
Mr M Korovou for the Respondent

Date of Hearing : 3 October 2012
Date of Ruling : 5 November 2012

RULING

1. This is an application for leave to appeal against sentence on the ground that it is harsh, excessive and wrong in law.
   
2. The Appellant was charged with another for robbery with violence contrary to section 293(1) of the Penal Code.
   
3. The Appellant pleaded guilty and was convicted and sentenced to 8 years imprisonment of which 3 years were to run consecutively and 5 years concurrently with the sentence of 8 years imprisonment he was already serving for another offence.
   
4. The tariff for the offence which was earlier between 6 to 14 years has now been increased to 10 to 16 years.
   
5. The learned High Court Judge in imposing the sentence on the Appellant started with a sentence of 10 years imprisonment, added 5 years for the aggravating factors and deducted 7 years for the mitigating factors, leaving a balance of 8 years imprisonment.
   
6. As the Appellant was already serving 8 years imprisonment since 9th October 2009, his present 8 years prison sentence was said to be part concurrent and part consecutive and in the result he was to serve 3 years of his 8 years sentence on a consecutive basis and 5 years on a concurrent basis.
   
7. As for the other Accused, the learned Judge started with a sentence of 10 years imprisonment, added 5 years for the aggravating factors and deducted 7 years for the mitigating factors leaving a sentence of 8 years imprisonment. Although he too was serving a prison term of 30 months at that time since 16th July 2009, his 8 years imprisonment was to be concurrent to his present term.
   
8. The Appellant has appealed against his sentence on the basis that the learned Judge erred in
   
   • (a) sentencing him to a partly concurrent and partly consecutive sentence;
   • (b) in taking the previous conviction as an aggravating factor and raising the tariff of 10 years to 15 years;
   • (c) failed to give credit to his plea of guilt.
     
9. A perusal of the court record shows that the learned trial Judge had considered the tariff for robbery with violence as between 6 to 14 years which is currently been followed and had started with a sentence of 10 years and thereafter increased it to 15 years for aggravating factors and reduced seven years for mitigating factors ending up with a sentence of 8 years.
   
10. The learned Judge thereafter considered his previous sentence of 8 years which he was already serving and made the current sentence to run on the basis of 5 years concurrent and 3 years consecutive.
    
11. As far as the other accused was concerned he too was given a sentence of 8 years but when considering his previous conviction for which he was already serving a sentence of 30 months, the current sentence of 8 years was to be concurrent with that sentence.
    
12. Although the learned Judge correctly applied the tariff for robbery with violence with which the two accused were charged, there appears to be a disparity when giving effect to the sentences of the two accused especially because both were charged regarding the same incident.
    
13. Therefore it would appear that there has been an inconsistency in the sentencing of the two accused persons who were charged for the same type of offence when taking into consideration the totality principle.
    
14. I would in those circumstances grant leave to the Appellant to appeal against his sentence.
    

Order of Court

The Appellant is granted leave to appeal against the sentence.

Suresh Chandra
Resident Justice of Appeal