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Wise v The State [1994] FJHC 99; HAA1225d.93s (19 August 1994)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEALS HAA0012 TO HAA0025 OF 1993

DAVID WISE
Appellant

V

STATE
Respondent

Counsel: Appellant in person
Mr. Tuiqereqere for Respondent

Hearing: 19th August 1994
Decision: 19th August 1994

ORAL DECISION OF PAIN J.

This is an appeal by the Appellant against the severity of a prison sentence imposed in the Suva Magistrates Court on the 4th of December 1991 on a variety of offences.

The first matter requiring consideration is the length of sentence that was imposed. On the 21 charges the Magistrate imposed one original sentence (2214/91) four consecutive sentences (1875/91; 2341/91; 2289/91 and 227/91). The remainder were concurrent sentences but the majority were made concurrent with other concurrent sentences rather than with the original or consecutive sentences which would be appropriate. This has made it difficult to trace and establish the effect of the various sentences. From the Magistrates notes it appears that he was intending to impose a total sentence of seven years imprisonment. However the manner in which he set about doing this has not achieved this result. The reason is that he has imposed a consecutive sentence upon a sentence running concurrently with an earlier original or consecutive sentence. In two cases the consecutive sentence has been added to a concurrent sentence that expires before the sentence with which it is running concurrently. The sentence of six months imprisonment imposed on charge 2289/91 in the Magistrates Court at Suva is consecutive upon a term of 12 months imprisonment (1890/91) which is running concurrently with a consecutive sentence of two years (1875/91). Thus both the concurrent sentence in 1890/91 and the sentence of six months consecutive upon that (2289/91) will expire before the sentence of two years in 1875/91. Therefore the purported consecutive sentence in 2289/91 is totally ineffectual in increasing the overall term. Likewise the sentence on the Nausori Magistrates Court File 227/91 of "l8 months imprisonment consecutive to Suva CF 2342/91" is only partially effective. That sentence is consecutive upon a term of six months (2342/91) that is running concurrently with another term of six months (2289/91) that is consecutive upon a term of twelve months (1890/91) that is running concurrently with a consecutive term of two years (1875/91). This means that the consecutive term of 18 months on the Nausori charge of 227/91 takes effect 18 months into the two year term imposed on the Suva charge 1875/91. It is effective in lengthening that term by only 12 months.

For these reasons the purported six months consecutive sentence on 2289/91 is ineffective and the purported 18 months consecutive sentence on 227/91 is effective for only 12 months. Accordingly the total effect of sentence that has been imposed is six years imprisonment only and not seven years. For the assistance of the Prison authorities I formally rule that the effective sentence on all charges is six years imprisonment commencing on the 4th of December 1991.

The question is whether that is an appropriate and adequate sentence for the offences committed by this particular offender. The proper approach is to consider the total criminality represented by the offences and to impose an appropriate sentence for that.

The sentencing remarks of the Magistrate are sparse. A general reference is made to the type of offences in the 21 charges without any specific details. The Magistrate then said, "This young accused person comes from a broken home and his mother could not control him. His stepfather came into the picture recently but it appears that he too cannot cope with him. He is a compulsive and repetitive offender not fit to be let loose in society. He has appeared in court 15 times between 1984 and 1989 mainly for breaking offences". These reasons indicate sentencing of the appellant on the basis of his antecedents and character which would be wrong in principle. The prime consideration is a sentence appropriate for the offending.

I have therefore carefully considered the particular offences and what they involved. There were 21 criminal charges, 7 of which originated in the Nausori Magistrates Court. There were three further traffic offences but these were relatively inconsequential. The 21 charges comprised two charges of sacrilege under Section 298 of the Criminal Code, 12 charges of burglary namely breaking, entering and committing a felony under Section 300. Two charges of breaking and entering with intent under Section 302. Four charges of unlawful use of motor vehicles under Section 292 and one charge of house breaking and felony by night under Section 299. These offences were committed over a period from the 11th of December 1990 to the 25th of October 1991. The particular offences are serious in terms of the Penal Code. The maximum sentences vary from 6 months on the unlawful use of a motor vehicle charge to 14 years in respect of the burglaries and sacrilege and even to life imprisonment on the one charge of house burglary by night.

The offending involved theft of a substantial amount of property with considerable loss to the complainants. My analysis taken from the charges and the summaries of fact, show that property valued at $11,304.25 was taken. A substantial portion of this was in the audacious burglary of the United Club. Property recovered amounted to $1,715.00 leaving a nett loss to the complainants of $9,589.25. In addition a safe valued at $2,200.00 that was stolen was recovered in a damaged condition and an unlawfully taken car was also damaged.

Such serious offending over a long period calls for a substantial prison sentence.

This is not a case where the appellant is entitled to any discount because of good character or lack of previous offending. The appellant at the time of sentence had a substantial criminal history for offences of this nature. His criminal record showed 10 convictions for the offence of breaking and entering and larceny. Prior to sentencing he had been sentenced to six separate prison terms. These included two sentences of two years each for breaking, entering and larceny imposed on the 1st of July 1987 and the 26th of July 1989. This further offending commenced on the 11th of December 1990 and continued to the 25th of October 1991.

Against these circumstances of the offending must be considered any mitigating factors. In this regard the pleas of guilty by the appellant to all charges is a mitigating circumstance.

He made a very eloquent plea today and advanced particular matters by way of submission. In the first place that others involved had received lesser sentences. However there is nothing to show a disparity that ought to be taken into account. The appellant must be given an appropriate sentence for the offending committed by him. He also referred to his impoverished and deprived background. That had been noted by the Magistrate who imposed sentence. It certainly explains but does not excuse the accused's attitude and offending during the period when these offences were committed. He was at that time continuing with serious criminal conduct despite earlier sentences having been imposed.

The appellants main concern in his submissions was in respect of a further sentence of seven years imposed on subsequent offending. This was for a wide range of serious criminal offending. There has been no appeal from any of those sentences, all of which were imposed after the sentences that I am now dealing with. Accordingly those sentences cannot be considered on this appeal. The appellant asks that the total term be shortened. I cannot look at the overall situation in that way. I must consider the sentences on the charges presently under appeal.

The appellant also stressed his change of attitude. He said that he is determined to make progress and not re-offend. He is undertaking study and has committed his life to Christian faith and principles. It is very encouraging that he has people who have come to court today and spoken on his behalf. They have seen a recent change. It is not something that can influence this decision on appeal, however. Those are matters for the Prison authorities to consider in relation to any request for special remission or extra mural work if that is appropriate.

I must consider the sentence imposed on the 4th of December 1991 for the 21 offences committed over a lengthy period. I have detailed the serious nature of that offending. This was clearly a case where the protection of the community was an important consideration. A salutary and deterrent sentence was appropriate for the serious offending by the appellant.

The total effect of sentence that has been imposed is six years imprisonment. That sentence is not wrong in principle. A substantial prison sentence was called for. Nor is the term that was given manifestly excessive. It is well within the range for offences of this nature and magnitude which represent very substantial criminality. I cannot say that the Magistrate erred in any way in imposing the sentence that he did.

Accordingly the appeals are dismissed.

JUSTICE D.B. PAIN

HAA1225D.93S