IN THE COURT OF APPEAL
On appeal from the High Court

CRIMINAL APPEAL AAU 48 of 2011
(High Court HAC 45 of 2008)

BETWEEN:

SACHINDRA NAND SHARMA
Appellant

AND:

THE STATE
Respondent

Coram: 	Calanchini P	
	Goundar JA
Madigan JA	

Counsel: 	Mr A J Singh for the Appellant
Mr L Burney with Mr R R Kumar for the Respondent	

Date of Hearing: 18 November 2015
Date of Judgment: 3 December 2015 

JUDGMENT

Calanchini P

[1] Following a trial in the High Court before a judge sitting with three assessors, the Appellant was convicted on 15 April 2011 on one count of attempted murder contrary to section 214(a) of the Penal Code Cap 17 (the Code) (now repealed), on one count of acting with intent to cause grievous harm contrary to section 224(a) of the Code and on one count of arson contrary to section 317(a) of the Code.

[2] The particulars of the first count were that the Appellant on 9 November 2007 at Vatuwaqa unlawfully attempted to murder Poonam Premila Sharma. The particulars of the second count were that the Appellant on 9 November 2007 at Vatuwaqa with intent to do some grievous harm to Krishneel Prasad unlawfully wounded him. The particulars of the third count were that the Appellant on 9 November 2007 at Vatuwaqa wilfully and unlawfully set fire to the dwelling house of Davendra Prasad which fire then spread to the dwelling house of Suresh Chandra resulting in the complete destruction of Suresh Chandra's dwelling house and its contents, with the estimated value of FJD$8,000.00; and also spread to the dwelling house of Gopi Nath resulting in the complete destruction of Gopi Nath's dwelling house and its contents with the estimated value of $8,000.00.

[3] On 27 April 2011 the Appellant was sentenced to a terms of imprisonment of 16 years for attempted murder, 6 years for acting with intent to cause grievous harm and 6 years for arson. The sentences were ordered to be served concurrently with a non-parole term of 14 years.

 Grounds of Appeal

[4] On 12 May 2011 the Appellant filed a timely notice of appeal against conviction and sentence. Pursuant to section 21 of the Court of Appeal Act Cap 12 (the Act) the Appellant required leave to appeal against both conviction and sentence. As a result of filing amended grounds of appeal against conviction and sentence, the Appellant was granted leave to appeal on grounds 1 to 6 and 8 and 9. Leave was refused on ground 7 which was not renewed before this Court:

"1. The Learned Trial Judge had a duty in Law to give directions as to the ingredients of the offences charged and to identify what the prosecution had to prove and he failed to do so, as a result causing the trial to miscarry, causing a miscarriage of Justice.

2. The Learned Trial Judge gave an erroneous direction in law in paragraph 14 and 5 of his (summary) (sic) up when he directed "the only ingredient to be proved is that the accused Sachin Nand Sharma committed the offences" thereby causing a grave miscarriage of Justice and a mistrial.

3. The Learned Trial Judge mis-directed the Assessors on the defence of alibi when he should have given the following directions in Laws;

a.	Where the appellant states that he was somewhere else at the time, the burden of proof is on the prosecution to disprove the alibi and not the Appellant to prove it.

b.	Should the Assessors conclude the alibi is false they should not for that reason alone convict the Appellant.

c.	Where a late alibi is set up (eg. at trial) it is open to the trial judge to comment that the State was deprived of the opportunity of investigating and testing the Alibi.

4. The Learned Trial Judge failed to give proper directions on the Law relating to identification as per the guidelines in R –v- Turnbull [1977] QB 224 and failed to warn the Assessors of the weakness in the identification evidence.

5. The Learned Trial Judge erred in Law in failing to direct the Assessors on the failure of Prosecution to call a material witness and failed to direct the Assessors, that failure to call a material witness cannot supply or make up a deficiency in the prosecution's case thereby causing a miscarriage of Justice.

6. The Learned Trial Judge failed to direct the Assessors in the context that the Appellant bears no onus of proof or have any obligation to call evidence, consistent with the presumption of innocence, thereby causing a miscarriage of Justice.

8. The Learned Trial Judge failed to take into account good character of the Appellant and should have directed the Assessors as follows:

a.	To bear in mind the Appellants good character when considering the questions of the Applicants guilt.

b.	That the Assessors should consider good character as a factor affecting the likelihood of the Appellant committing the Crime charge.

c.	The Good character of the Appellant should also be considered in assessing the credibility of the explanations offered by the Appellant and in the case where the Appellant gave evidence, the credibility of the Appellant as a witness, thereby causing a miscarriage of Justice.

9. The Sentencing imposed by the Learned Trial Judge was manifestly excessive having regards to all the circumstances of the case."

[5] When the appeal came on for hearing Counsel for the Appellant informed the Court that the Appellant was not pursuing ground 5 since an application for leave to adduce fresh evidence had been dismissed by the Court in a judgment delivered on 27 February 2015.

 Background facts

[6] The background facts can be stated briefly. The Appellant and Poonam Sharma had been in a de facto relationship for about two years prior to 9 November 2007. Some time before 9 November 2007 the relationship had come to an end. Poonam Sharma had decided to return to her parents' home in Vatuwaqa. The Appellant had attempted to meet with Ms Sharma on a number of occasions shortly before and on 9 November 2007. It would appear that she had resisted all his efforts to discuss their relationship and had refused to meet him again. The Appellant had apparently engaged Ms Sharma's brother to help arrange a meeting, but to no avail. 

 Agreed facts

[7] On the opening day of the trial in the High Court Counsel for the Respondent filed a statement of agreed facts dated 28 March 2010 but which should perhaps read 28 March 2011 as the record indicates on page 203 that the document was "signed in open court" on 28 March 2011. The statement of agreed facts is relevant to the grounds of appeal against conviction and is therefore reproduced in its entirely:

"1. It is agreed that Poonam Pretika Sharma is the daughter of Davendra Prasad and Sashi Kala; and is the sister of Krishneel Prasad.

2. It is agreed that the above family resided at Veidogo Settlement, Vatuwaqa on the 9th of November 2007 in a lean-to dwelling tin house, which contained one sitting room, two bedrooms, one kitchen and one outdoor kitchen.

3. It is agreed that at about 3am, Poonam Pretika Sharma was sleeping in one of the two bedrooms in the house when she was awoken by a person who was calling her name from outside her bedroom.

4. It is agreed that after Poonam Pretika Sharma woke up, she smelt benzene or kerosene in her bedroom, which was either thrown or poured into the bedroom through her window by that person.

5. It is agreed that that person then threw a lighted match stick or something alight into the bedroom through the window, which immediately started a fire in the bedroom.

6. It is agreed that that person then came into the said burning house and stabbed Poonam Pretika Sharma four times on her chest and a few times on her right thigh with the intent to kill her.

a) It is also agreed that Poonam Pretika Sharma's medical report dated 22/11/07 is tendered in by consent by both parties as documentary evidence which confirms the four stab wounds to her chest and three to four stab wounds to her thigh; injuries that she sustained on the early morning of the 9th of November 2007.

7. It is also agreed that, within the burning house, the person tried to force Poonam Pretika Sharma into the fire with the intent to kill her.

8. It is agreed that Krishneel Prasad who was sleeping in the same bedroom had to be taken out of the burning house and in the process sustained severe burnt injuries to his body.

a) It is also agreed that Krishneel Prasad's medical report dated 09/11/07 is tendered in by consent of both parties as documentary evidence which confirms the disfigurement of parts of his body as a result of the burns he sustained on the early morning of the 9th of November 2007.

b) It is also agreed that Krishneel Prasad sustained his injuries on the 9th of November as a result of the person's intention to cause grievous harm to Krishneel Prasad by deliberately causing the fire to the house in which Krishneel Prasad was sleeping in.

9. It is agreed that on the 9th of November 2007 the person wilfully and unlawfully set fire to the dwelling house of Davendra Prasad, which fire then, spread to the dwelling house of Suresh Chandra resulting in the complete destruction of Suresh Chandra's dwelling house and its contents, with the estimated value of FJD$8,000.00; and also spread to the dwelling house of Gopi Nath resulting in the complete destruction of Gopi Nath's dwelling house and its contents, with the estimated value of FJD$8,000.00.

a) It is also agreed that the National Fire Authority Report addressed to the Crime Officer of Police HDQ dated 29/02/08 be tendered in with consent of both parties.

10. It is agreed that the Record of Interview of Sachindra Nand Sharma dated 27/02/08 be tendered in with consent of both parties.

11. It is agreed that the Charge Statement of Sachindra Nand Sharma dated 27/02/08 be tendered in with consent of both parties."

[8] It is apparent that, as a result of the facts agreed to by the Appellant's Counsel, the defence raised by the Appellant was that he was not the person who had committed the acts set out in the agreed facts. Furthermore the Appellant in his defence appeared to claim that for some reason he was being "framed" by Ms Sharma and her family on account of the failed relationship. However one of the grounds of appeal raises the issue of identification or more accurately recognition and the failure by the learned trial Judge to give proper directions in relation to that issue.

 Grounds 1 and 2 – Directions on the elements and the agreed facts

[9] It is in the context of that background that the grounds of appeal must now be considered. In his written submissions filed on 15 September 2015 Counsel for the Appellant appears to have considered grounds 1 and 2 together. Ground 1 relates to a claim by the Appellant that the learned Judge failed to give directions on the ingredients of each offence which the Respondent was required to establish. Ground 2 challenges the directions given by the Judge in paragraph 14 that the only issue before the Court was whether it was the Appellant who had committed the offences. The learned Judge said that this was the only matter to be determined.

[10] Counsel for the Appellant submitted that there was nothing in the Record to indicate that the assessors had the agreed facts before them when they retired to consider their opinions. Counsel also submits that even if the agreed facts were with the assessors, the obligation of the learned Judge to set out the ingredients or elements of each offence still remained.

[11] Although the record does not contain any further reference to the document (other than on page 203) there is no reason to assume that the statement was not one of the documents to which reference was made by the learned Judge in paragraph 41 of his summing up. In that paragraph the Judge directed the assessors to consider all the documents and evidence.

[12] Counsel who represented the Appellant at the trial in her closing submissions reminded the assessors and the Judge that it was not disputed that (1) the house was burnt down, (2) Ms Sharma was injured and (3) Krishneel Prasad received burning injuries. The closing address by Counsel for the Respondent suggests, by his references to the agreed facts that the document was before the assessors.

[13] If that is accepted then the issue is whether the learned trial Judge was required to set out the ingredients or elements of the offence that the Respondent was required to establish beyond reasonable doubt. The starting point is section 135(1) of the Criminal Procedure Decree 2009 which states:

"An accused person, or his or her lawyer, may in any criminal proceedings admit any fact or any element of an offence, and such an admission will constitute sufficient proof of that fact or element."

[14] The effect of the section is that when a fact or an element of an offence has been admitted by an accused or his lawyer in the prescribed manner (section 135(2)) then that fact or element has been established in the sense that it has been proved to the required standard. The fact or the element thus established is no longer in issue at the trial and need not be the subject of any further concern to either the assessors or the trial Judge.

[15] It must be noted that both Counsel indicated to the assessors and to the Judge that the only issue to be established by the Respondent beyond reasonable doubt was whether the Appellant was the person who committed the acts set out in the agreed facts. Upon a reading of the agreed facts it is clear that there are admissions as to both the facts and the elements of each of the three offences sufficient to establish beyond reasonable doubt that the offences had been committed. The agreed facts left open only one issue being the identity of "the person."

[16] Although it may have been desirable for the learned Judge for the sake of completeness to have briefly set out the elements of each offence, the failure to do so in this case does not constitute an error in the sense that a miscarriage of justice has resulted.

 Ground 3 – Alibi

[17] Ground 3 of the appeal is concerned with the adequacy of the directions given to the assessors by the learned trial Judge on the alibi evidence adduced by the Appellant. The directions given by the Judge appear in paragraphs 34 and 35 of his summing up and can conveniently be reproduced here:

"34. The Defence of Alibi; that means he was elsewhere at the time of the incident is taken for the (first) time in this Court in March 2011. Further this was not informed to Police investigators at the time of investigations. You may consider the fact with the explanation given by the accused that he waited till the matter to be taken in up in court.

35. Once again I wish to remind you that it is the duty of the Prosecution to prove the case beyond reasonable doubt. It never shifts to accused at anytime."

[18] In considering this ground of appeal it is necessary to keep two basic principles in mind. First, there is no precise formula that must be used by a trial Judge when giving directions to the assessors. Secondly it is well established that directions should be tailored to the particular facts and circumstances of each trial. It must also be recalled that Counsel for the Appellant at the trial did not request any further directions on alibi be given to the assessors by the learned Judge. The issue is whether the directions in paragraphs 34 and 35 of the summing up were proper in the circumstances of this case. It is clear that the learned Judge has not given a full direction in relation to the alibi defence. In my judgment the learned Judge has correctly directed the assessors that the burden of proof rested on the prosecution to disprove the Appellant's alibi when he told the assessors in paragraph 35 that "it is the duty of the Prosecution to prove the case beyond reasonable doubt. It never shifts to accused at any time." Similar directions were given at the commencement of the summing up in paragraph 4.

[19] The principle complaint made by the Appellant is that the learned trial Judge failed to direct the assessors that if they rejected the alibi evidence given by the Appellant and his witnesses (of which there were four) they ought not to conclude from such rejection that the Appellant must be guilty.

[20] The thrust of the alibi defence was that at the time the offences were committed the Appellant was drinking "grog" with friends at two different locations between 9.00pm on 8 November 2007 and 4.30am on 9 November 2007. This evidence was appropriately summarised by the Judge in his summing up.

[21] The witnesses for the Prosecution all gave evidence to the effect that they saw the Appellant dragging Poonam Sharma into the flames of the burning house. Poonam Sharma gave evidence that immediately before the fire had started she was woken up by the Appellant calling her by her name. She identified the Appellant as the person who had stabbed her and attempted to drag her into the flames. All the witnesses knew the Appellant well as he had been in a relationship with Poonam Sharma for some time prior to its breakdown in September 2007.

[22] The issue is whether the learned Judge should have directed the assessors in the manner submitted by the Appellant as to the consequences of accepting the evidence adduced by the Respondent and rejecting the evidence called by the Appellant. In Harron v R [1996]2 Cr. App. R 458 the Court of Appeal noted that merely because lies consist of stating that the Appellant was at a different place is not decisive whether there is a need for guidance from the trial Judge. At page 463 the Court clarified the position and indicated when a full direction may be required and when it is not necessary to give such a direction.

[23] The Court said:

"The difficulty arises from cases in which evidence of witnesses for the (Prosecution) proving guilt is in direct and irreconcilable conflict with the evidence of the accused and his witnesses. In such a case the (assessors) as a matter of logic and common sense have to decide which witnesses are telling the truth. If they accept the evidence for the prosecution it necessarily involves a conclusion that the evidence of the accused is untrue and in such a case the (assessors) would have reached a conclusion that the accused and his witnesses are lying."

[24] Under those circumstances the Court of Appeal concluded that the issue as to lies is not an issue that the assessors, or the Judge for that matter, have to take into account separately from the central issue in the case. A full direction is not required in such a case. A similar view was expressed by the Court of Appeal in Patrick –v- R [1999] EWCA Crim. 746. In circumstances similar to the present appeal the Court of Appeal concluded that where there is no basis for rejecting alibi evidence except by the acceptance of the evidence of prosecution witnesses identifying the appellant as the perpetrator of the crimes it is not necessary to give a full direction i.e. a "Lucas" direction (R v Lucas [1981] 1 QB 720).

[25] In my view this is not a case in which the rejection of the Appellant's alibi evidence can be regarded by the assessors as supporting evidence of the Appellant's guilt. Rather, this is a case where the Appellant's guilt can be regarded as being the result of the assessors having accepted the recognition evidence of the prosecution witnesses as proof beyond reasonable doubt that it was the Appellant who was the person who committed the offences, the ingredients of which had been set out in the agreed facts. The failure to give a full direction in this case does not amount to a miscarriage of justice.

 Ground 4 – Identification/Recognition

[26] The fourth ground of appeal relates to the directions given to the assessors on the law relating to identification with particular reference to compliance with the guidelines set out in R v Turnbull [1977] QB 224. The written submissions filed by Counsel for the Appellant set out lengthy extracts from a number of authorities including R v Turnbull (supra), R v Haidley and Alford [1984] VR 229, R v Weeder 71 Cr. App. R 228 and R v Burchielli [1981] VR 611. At page 14 of the submissions Counsel relies on three pieces of evidence in support of the claim that a full identification guideline direction should have been given to the assessors. The first piece of evidence is said to be at page 244 line 4 of the Record. It is claimed that the complainant (Poonam Sharma) said that she was not sure of the voice of the accused. There is no such reference to those comments on that page. Page 244 sets out the transcript of evidence of the fourth prosecution witness, Krishneel Prasad. The second piece of evidence is at page 213 line 3 of the record. The complainant is quoted as saying that the Appellant "was wearing white vest to cover his head." However that piece of evidence must be considered in the context of the evidence given in the first paragraph on that page. Poonam Sharma stated that:

"When accused tried to suffocate me he threw punches on my face, my shoulders and he kept saying 'I love you'."

It is clear that she knew that it was the Appellant who was assaulting her because she recognised his voice and by virtue of what he was saying. Visual recognition was not necessarily an issue at that stage.

[27] The third piece of evidence to which the Appellant refers is on page 240 line 29 of the Record. This part of the transcript sets out the evidence of the third prosecution witnesses Davendra Prasad who was the father of Poonam Sharma. Mr Prasaid refers to the Appellant "wearing _ _ _ red cloth tied up on his head." This observation was some time after Poonam Sharma's observations. It was also some time after the fire had started and after the Appellant had assaulted Poonam Sharma. This does not necessarily amount to an inconsistency in the evidence since either the fire or blood or both may have resulted in the cloth's colour changing.

[28] However these minor matters and the lengthy quotations from authorities do not touch upon the real issue raised by the ground of appeal. In the circumstances of this case, with particulars reference to the evidence and the basis upon which the prosecution and the defence ran their cases, the real issue is whether the guidelines set out in R v Turnbull were required to be given to the assessors.

[29] In R v Cape [1996] 1 Cr. App. R191 the Court of Appeal stated at page 197 that:

"The Turnbull direction needs to be given in those cases where the case against the accused depends wholly or substantially on the correctness of an identification of the accused which the defence alleges to be mistaken."

[30] In R v Oakwell 66 Cr. App. R 174 at page 178 Lords Widgery CJ had clarified the position when he stated that:

"Turnbull is intended primarily to deal with the ghastly risk run in cases of fleeting encounters."

[31] Finally, in R v Cape (supra at page 198) the Court of Appeal indicated its agreement with the following commentary on R v Courtnell [1990] Crim. L.R.115 at page 116:

"The 'Turnbull' rules were primarily designed, as Lord Widgery so vividly put it in the later case of Oakwell to deal with the 'ghastly risk run in cases of fleeting encounters.' Thus the rules are expressed to apply 'whether the case against the accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken.' If the defence alleges, not mistake, but a frame-up, no useful purpose would be served by giving the warning."

[32] In other words, where veracity, as distinct from reliability, of the identification or recognition is the issue then there is no useful purpose to be served by insisting on a "Turnbull" warning. In this case it is quite apparent that the Appellant's defence was that he was being set up or framed on account of the failed relationship. One example is the cross-examination of Poonam Sharma by Counsel for the Appellant at page 223 of the Record:

"Q At that point of time when he said he wants to go back to his wife were you in love with him?
A Yes

Q You felt disheartened?
A Yes

Q You also felt deceived?
A Yes

Q You also had felt betrayed?
A No

Q Did you develop an enmity on him?
A Yes"

[33] It is clear that the challenge to the evidence of prosecution witnesses was on the basis that their identification evidence was untrue, not that they were mistaken. Furthermore Counsel for the Appellant at the trial did not request the trial Judge to give the assessor a "Turnbull" direction on the basis that the identification evidence was unreliable.

[34] The learned trial Judge did not give any direction of the type laid down by the Court of Appeal in Turnbull (supra) nor did he mention the dangers of acting on recognition evidence. For the reasons stated above in my judgment it was not necessary for him to do so. I am satisfied that there is no ground for concluding that there has been a miscarriage of justice.

 Ground 8 – Good character

[35] The issue raised by ground 6 has been adequately considered in grounds one and two. Ground 8 relates to the issue of good character. The submissions filed by the Appellant refer only briefly to this ground on page 15. In the present case Counsel for the Appellant at the trial did not seek to raise the issue of the Appellant's good character. There may have been a good reason for not doing so but none is apparent from the material that is before this Court. It must also be recalled that Counsel did not request that directions be given to the assessors on the good character of the Appellant. The Privy Council held in Sealey and Another –v- The State [2003] 3 FRC 269 that there was no duty on the trial judge to give a direction on good character when the issue had not been raised in evidence by the defence. For all of the above reasons this ground fails.

 Appeal against conviction

[37] The appeal against conviction is dismissed under section 23(1) of the Act on the basis that none of the grounds raised by the Appellant establishes any error which could be said to have caused a miscarriage of justice. Under those circumstances it is not necessary to consider whether there has been any substantial miscarriage of justice that would otherwise have resulted in the proviso to section 23(1) of the Act being considered.

 Appeal against Sentence

[38] The appeal against sentence is on the ground that the sentence of 16 years imprisonment with a non-parole term of 14 years was "manifestly excessive." The Appellant submits that the sentence fell "far outside the range of sentences" for the offences of which the Appellant was convicted. The Appellant also submits that the learned Judge erred in the exercise of his sentencing discretion. In that regard the Appellant submits that the learned Judge failed to give proper consideration to relevant factors both objective and subjective. The only matter to which the Appellant specifically refers is the good character of the Appellant. The Appellant also challenges the approach to sentencing that has been adapted by sentencing judges in the High Court.

 Approach to Sentencing

[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 [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 Sentencing and Penalties Decree does not provide specific guidelines as 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.

[43] Section 23(3) of the Act provides the statutory basis for the determination of an appeal against sentence. That section states:

"On an appeal against sentence the Court of Appeal shall if they think that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted by law by the verdict (whether more or less severe) in substitution thereof as they think might to have been passed, or may dismiss the appeal or make such other order as they think just."

[44] It is now well settled that this section is concerned with the proper exercise of the sentencing discretion by the trial judge. In Kim Nam Bae –v- The State (AAU 15 of 1998; 26 February 1999) this Court observed:

"It is well established law that before this Court can disturb the sentence, the appellant must demonstrate that the Court below fell into error in exercising its sentencing discretion. If the trial judge acts upon a wrong principles, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some relevant consideration, then the Appellate Court may impose a different sentence. This error may be apparent from the reasons for sentence or it may be inferred from the length of the sentence itself (House –v- The King (1936) 55 CLR 499)."

[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.

 Totality

[46] The three offences were committed as part of one transaction. The sentencing judge sentenced the appellant to terms of imprisonment for each offence and then ordered that they be served concurrently. In ordering concurrency the sentencing judge complied with section 22(1) of the Sentencing Decree. The issue raised by the Appellant relates to what is referred to as the totality principle. In Rawaqa –v- The State (AAU 9 of 2008; 8 April 2009) this Court stated:

"The totality principle is so well known now that it is necessary only to make a passing reference to it. It requires a sentencer who is considering whether to impose consecutive sentences for a number of offences to pause for a moment and review the aggregate term and then decide when the offences are looked at as a whole whether it is desirable in the interest of justice to impose consecutive or partly consecutive and partly concurrent sentences or concurrent sentences only in relation to the head sentences. If this is done sensibly then experience shows that the total sentence imposed will be fair and correct."

[47] Although the default position in relation to concurrent and consecutive sentencing has been reversed by section 22(1) of the Sentencing Decree, the totality principle is still relevant to the final sentence imposed. 

[48] In the present case the sentencing judge fixed a sentence of 16 years imprisonment for the offence of attempted murder, 6 years imprisonment for acting with intent to cause grievous harm and 6 years imprisonment for arson. The total sentence was 28 years imprisonment. The Judge ordered that the sentences be served concurrently. This would appear to have been on the application of the totality principle but it also complied with section 22(1) of the Sentencing Decree.

[49] The totality principle depends on the sentence for each of the offences committed in the one transaction having been correctly determined. In this case the challenge to the total sentence of 16 years related to the sentence fixed for the conviction for attempted murder. There were clearly matters classified as aggravating factors in paragraph 10 of the sentencing judgment that are not matters that can properly be regarded as aggravating factors. Similarly the matters that were described as mitigating factors in paragraph 11 are not mitigating factors. Furthermore, at no stage has the Appellant received any discount for his good character up to the date of the offences. As well, the sentencing judge made no reference to the patently obvious lack of remorse demonstrated by the Appellant.

[50] Nevertheless I have concluded that the sentence of 16 years for attempted murder is one that was open to the sentencing judge when all the circumstances are taken into account. The events that constituted the attempted murder offence included the attempt to burn her to death by starting the fire in her bedroom, stabbing her and then attempting to drag her into the flames of the burning house. In my judgment there were strong grounds for the sentencing judge, by using the two-tiered approach, to fix a starting point that went beyond the tariff.

[51] When the number of victims are taken into account together with their injuries and the amount of damage caused to the three houses is taken into account, a total sentence of 16 years is within the permissible range and as a result I have concluded that neither the sentence for attempted murder nor the total sentence constitute an error in the exercise of the sentencing discretion. There did not appear to be any specific challenge to the non-parole period fixed of the trial Judge. I would dismiss the appeal against sentence.

Goundar JA

[52] I have read the judgment of Calanchini P in draft and agree with his reasons and proposed orders.

Madigan JA

[53] I have read in draft the judgment of the President of the Court and for the reasons he gives, I would dismiss both the appeal against conviction and the appeal against sentence. I would however make a few observations about good character.

[54] After a plea of guilty or a finding of guilty, the greatest factor in mitigation for an accused is his good character. Sadly in Fiji it is almost universally ignored by defence at trial. Admittedly it is advanced in mitigation in sentencing submissions but very rarely are defendants at trial invited to tell the Court that they have no previous convictions when that is indeed the case.

[55] Having no previous convictions is a mark of good character and when such is raised, then it is incumbent on the Judge to give the assessors two important directions. First the assessors will be told that the fact that he has no criminal record means that it is relevant to his/her credibility when he/she has testified or made pre-trial statements. Secondly good character is relevant, they should be told, to his/her propensity to have committed the offence.

[56] These two limbs of the good character direction had been extended too far in England where it has in some instances been a direction to the jury when the defendant had bad character (i.e previous convictions),

[57] The recent case of R v. Hunter &others [2015] EWCA 631 sought to bring clarity and common sense to this matter and the English Court of Appeal stated that the direction is not to be given in cases where there are previous convictions. It extended the availability of the direction to those with previous convictions which are old, minor or with no relevance to the charge and gave the trial Judge the ultimate discretion whether or not to treat the particular defendant as a person with good character. The Court said that the judge was not obliged to treat the defendant as a person of good character but he is to assess the circumstances of the previous offence(s) and the offender to the extent known. If a judge decides a person is of "effective good character" the judge must give both limbs of the direction, modified as necessary to reflect the other matters and thereby ensure that the jury (assessors) are not misled.

[58] The case also stressed that neither a failure to give a good character direction nor misdirection will inevitably lead to a conviction being quashed. The test will depend entirely on the facts of individual cases.

[59] It is clear therefore that the absence of previous convictions if raised will place a defendant in a much more favourable light before assessors, and what counsel would not want to do that?

Orders:

 Appeal against conviction and sentence dismissed.

Hon. Mr Justice W.D. Calanchini
PRESIDENT, COURT OF APPEAL

Hon. Mr Justice Goundar
JUSTICE OF APPEAL

Hon. Mr Justice Madigan
JUSTICE OF APPEAL