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Ramanu v State [1997] FJHC 76; HAA0043D.1997S (26 June 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.0043 OF 1997

Between:

ISIRELI RAMANU
Appellant

And:

THE STATE
Respondent

Counsel: Appellant in person
Mr. W. Clarke for Respondent

Hearing: 25th June 1997

Decision: 26th June 1997

ORAL DECISION OF PAIN J

This is an appeal against sentence.

The Appellant pleaded guilty in the Magistrates Court on 18th October 1995 to 4 charges. He was convicted and sentenced as follows:

Count 1 - Robbery with violence - 2 years imprisonment.

Count 2 - Unlawful use of a motor vehicle - 3 months imprisonment.

Count 3 - Driving a motor vehicle without a licence - 3 months imprisonment.

Count 4 - Driving a motor vehicle without third party insurance - 6 months imprisonment.

In respect of each sentence of imprisonment the learned Magistrate ordered that it was "to be consecutive to his present prison term". However he did not say whether the 4 terms were to be served concurrently with or consecutively upon each other. Accordingly in terms of Section 28(4) of the Penal Code those 4 prison terms of 2 years, 3 months, 3 months and 6 months would be served consecutively upon each other. That means a total sentence of 3 years imprisonment consecutive to the term being served. However the warrant for imprisonment signed by the learned Magistrate showed a total sentence of 2½ years imprisonment consecutive to the term being served. That is the sentence now being served. A term of 2½ years may have been intended by the learned Magistrate but to achieve this it would have been necessary to order that the terms of 3 months, 3 months and 6 months imprisonment imposed on Counts 2, 3 and 4 were to be served concurrently with each other but consecutive to the term of 2 years imprisonment imposed on Count 1.

There are further problems relating to Counts 2, 3 and 4. The summary of facts given by the prosecution in the Magistrates Court does not give any facts to show that the charges of driving without a licence and driving without third party insurance were committed by the Appellant. On the charge of driving without a licence the Appellant was sentenced to 3 months imprisonment but the maximum penalty for a first offence appears to be only a fine of $50. That is under Section 4(1) of the Motor Vehicles (Third Party Insurance) Act and not Section 41(1) of the Motor Vehicle Third Party Police Risk Act as stated in the charge. All 4 offences arise out of a continuous episode when the Appellant and his companions robbed a taxi driver and the Appellant then drove the taxi with the taxi driver remaining in the vehicle until it was abandoned. Counsel for the Respondent conceded that the prison sentences on Counts 2, 3 and 4 should be served concurrently with the prison sentence on Count 1 as all the offences were part of the same transaction. Significantly, this had been done when the Appellant was sentenced in the Magistrates Court on identical charges five months earlier.

In view of all these matters the consecutive prison sentences on Counts 2, 3 and 4 should not be sustained. The proper course is to order that the sentence of 3 months imprisonment on Count 2 be served concurrently with the sentence on Count 1 and the sentences on Counts 3 and 4 be quashed.

I turn now to consider the appeal against the sentence of 2 years imprisonment on the charge of Robbery with violence consecutive to the term then being served.

After the Appellant pleaded guilty to the charges, the Prosecutor advised the learned Magistrate that the Appellant was a first offender. This is yet another case where the prosecution has not made an up-to-date list of previous convictions available to the Court. In his plea in mitigation the Appellant disclosed to the learned Magistrate that he was serving a 5 year prison sentence. The learned Magistrate, without further inquiry, then imposed a sentence of 2 years imprisonment to be served consecutively to the term then being served.

I confirm what I recently said in Latchman Prasad Sharma v The State (Crim. App. No.27 of 1997). When a serving prisoner is being sentenced, the sentencer must have regard to the principle of totality. He must consider the current sentence being served together with the appropriate sentence for the further offending to ensure that the total sentence is appropriate for the total offending. (See R v Millen (1980) 2 Cr. App. R (s) 357). That was not done in this case. The learned Magistrate imposed a consecutive sentence without having sufficient knowledge of what it was consecutive to and whether the total consecutive terms were appropriate for all the offences.

In the circumstances I have allowed the Appellant to give details of the other offences. So far as he is able, counsel for the Respondent has confirmed the details given.

The Appellant was previously a school teacher with an unblemished record. He gave up his job. It appears very likely, as he says, that he got into bad company and committed a spate of offences with his companions.

The Appellant participated in the commission of 4 offences of robbery with violence. These were:

1. On 17th September 1994 robbery of a taxi driver Ali Hasan of $75 cash in company with Charles Pickering and Solomoni Rokotovitovi.

2. On 17th September 1994 robbery of Vijay Prasad of a wrist watch and $120 cash in company with Rokotovitovi.

3. On 17th September 1994 robbery of Mohini Priya of a gold mangulsutra and ring in company with Rokotovitovi.

4. On 23rd September 1994 robbery of a taxi driver Vinay Prakash of $55 in company with Charles Pickering and Rena Maharaj.

On 31st May 1995 the Appellant pleaded guilty to the robbery charges numbered 1 and 3 above. He was sentenced to imprisonment for terms of 3 years and 2 years to be served consecutively. Making a total sentence of 5 years imprisonment. On appeal to this Court on 2nd August 1996 those sentences were quashed and sentences of 3 years imprisonment were imposed on each charge to be served concurrently. Thus the 5 year sentence was reduced to 3 years.

The Appellant advises that some time in 1995 or 1996 he pleaded guilty to the charge numbered 3 above and was given a concurrent prison sentence.

On 18th October 1995 the Appellant pleaded guilty to the charge numbered 4 above and was sentenced to 2 years consecutive imprisonment. This is the sentence that is now under appeal.

The present situation is that for the 4 offences of robbery with violence the Appellant is now serving an effective sentence of 5 years imprisonment. Originally it was 7½ years and should actually have been 8 years. This illustrates the dangers of separate sentences being imposed without reference to the totality principle. The question to be determined is whether on the totality principle the present sentence of 5 years imprisonment is manifestly excessive for this offender having regard to the criminality involved in the commission of all 4 offences.

I interpolate here that the Appellant himself is entirely responsible for his predicament and the imposition of separate sentences on different occasions. Upon apprehension he confessed his involvement to the Police. He phrased it in his oral submissions that he "pleaded guilty to the police on all charges". Nevertheless, when charged in Court he pleaded not guilty to all charges. This resulted in long delays caused by such matters as the unavailability of counsel and the absence of one or more accused. The Appellant did not plead guilty to all charges for periods ranging from 8 months to 12 months after he was first charged. Defendants who 'play the system' in this way can expect little sympathy from this Court. If the Appellant had pleaded guilty when first charged he would have been given credit for that and the appropriate sentence would probably have been served by now. In these circumstances the Appellant can hardly claim any credit for his ultimate pleas of guilty.

The Appellant specifically raised disparity of sentence as a ground for appeal. He said that his co-offender Charles Pickering was given a suspended prison sentence. However, there are differences. Pickering participated in only 2 of the robberies. The Appellant participated in all four. Another co-offender Solomoni Rokotovitovi participated in 3 of the offences and has been sentenced to 5 years imprisonment. On the Appellant's earlier appeal to this Court the learned Judge upheld an immediate prison sentence on two charges but reduced the term from 5 to 3 years. He specifically said in his decision that he was only dealing with the appeal in relation to the two charges only.

In the circumstances a suspended sentence on the one robbery charge now appealed should not be imposed on the ground of disparity. The question still remains of whether the total sentence of 5 years imprisonment is appropriate for all the offending.

It hardly needs to be said that the commission of robbery with violence is a matter of real concern to the Courts and the community. It is viewed seriously by the legislature, deterrent sentences are imposed and an immediate prison sentence can be expected.

The Appellant committed 4 such offences which indicates serious criminality calling for particular deterrence.

However, the 4 offences can be regarded as one episode of offending. Three of the offences were committed in the one general transaction on the same day. The Appellant and others robbed a taxi driver and then drove off in the taxi. Two members of the public hailed the taxi and were driven away and also robbed. The further robbery was committed only 6 days later.

The Appellant can properly be regarded as a first offender who participated in the commission of this series of 4 offences. He submits, and there is nothing to indicate otherwise, that he committed no further offences in the period of 8 months that he was at large prior to the first sentence of imprisonment being imposed. As a first offender he is entitled to some reduction in the sentence that would otherwise be imposed. There are clear indications that this offending was committed during an aberrant interlude of the Appellant's otherwise trouble free and worthwhile life.

The Appellant is an intelligent person who has the ability to achieve well in life. While in prison he has shown this by completing a unit of study at the University of the South Pacific with a B pass and by using his skills to educate other inmates. He has received a strong recommendation from the Prison Authorities for this work. No doubt his conduct will be favourably taken into account on the question of pre-release.

The Appellant should properly be sentenced to a term of imprisonment for this serious offending. However, it is a first prison sentence imposed upon a person who must be regarded as a first offender. It is a proper sentencing principle that the sentence should be "as short as possible, consistent only with the duty to protect the interests of the public and to punish and deter the criminal" (R v Bibi 1980 1 WLR 1193).

On the information before this Court, the Appellant seems to have overcome his wayward streak and is intent on living a worthwhile life. It appears that he is unlikely to re-offend and should not present any future risk to the community.

In view of all the matters I have mentioned some reduction in the total sentence should be made. However, due regard must still be given to the gravity of the offending. The sentence will therefore be reduced to a total overall term of 4 years imprisonment.

Accordingly the appeal is allowed and the following orders made:

1. The sentence of 2 years imprisonment on the charge of robbery with violence is quashed and a sentenced of 1 year's imprisonment is substituted, such sentence to run consecutive to the sentence of 5 years imprisonment (which was reduced on appeal to 3 years) imposed on 31st May 1995.

2. The sentence of 3 months imprisonment imposed on the charge of unlawful use of a motor vehicle is confirmed but it is to be served concurrently with the sentence of 1 year now imposed on the charge of robbery with violence.

3. The sentences of 3 months imprisonment imposed on the charge of driving a motor vehicle without a licence and 6 months imprisonment imposed on the charge of driving a motor vehicle without third party insurance are quashed. On those charges the Appellant is discharged without further penalty.

4. The effect of these orders is that the Appellant will serve a sentence of 1 year's imprisonment consecutive to the sentence of 3 years imprisonment that commenced on 31st May 1995, a total of 4 years in all.

Justice D.B. Pain