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Ravonokula v The State [2004] FJHC 77; HAA0007-10.2004 (25 March 2004)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEALS NOS. 7 - 10 OF 2004

BETWEEN:

LIVAI RAVONOKULA
Appellant

AND:

STATE
Respondent

Counsel: Appellant in Person
Ms S Shah for the State

Hearing: 23 March 2004
Judgment: 25 March 2004

JUDGMENT

This is an appeal against sentence. The appellant was sentenced on the 17th of July 2003 for six counts of larceny and one count each of damaging property, housebreaking with intent to commit felony, criminal intimidation, resisting arrest and being drunk and disorderly. The sentences imposed were as follows:

1. Savusavu Criminal Case No. 28/03

Count 1- House Breaking with Intent to Commit Felony: 2 years imprisonment

Count 2- Criminal Intimidation: 12 months imprisonment - concurrent to Count 1

Count 3- Resisting Arrest: 12 months imprisonment – concurrent to Counts 1 and 2

2. Savusavu Criminal Case No. 29/03

Drunk and Disorderly: 3 months imprisonment – concurrent to Criminal Case No. 28/03 above.

3. Savusavu Criminal Case No. 30/03

Larceny: 12 months imprisonment – concurrent to Criminal Case No. 28/03 above.

4. Savusavu Criminal Case No. 31/03

Larceny from person: 12 months’ imprisonment – consecutive to Criminal Case No. 28/03 above.

5. Savusavu Criminal Case No. 32/03

Larceny: 12 months imprisonment – consecutive to Criminal Case No. 28/03 above.

6. Savusavu Criminal Case No. 33/03

3 Counts of Larceny: 12 months imprisonment on each Count – concurrent to each other but consecutive to Criminal Case No. 28/03 above.

7. Savusavu Criminal Case No. 46/03

Damaging Property: 9 months imprisonment – concurrent to Criminal Case No. 28/03 above.

Particulars of Offending

Case No. 28 of 2003

At about 6.30pm on the 25/1/03 Savita Devi closed the Savusavu Bay Accommodation and went home. The appellant who was drunk climbed onto the chimney, broke the gauze wire and went into the store room. He was seen and the matter was reported to the Police.

The Police and noticed that the appellant had locked himself inside the store. He refused to open it. The door was forced open and the Police tried to arrest the appellant. It was during this process that the accused threatened to stab the policeman with a flower cutter he had in his hand. Arrest was attempted but the appellant resisted. After a struggle the appellant was overcome and arrested. He was later interviewed and admitted the facts of the case.

Case No. 31 of 2003

On the 4th day of February 2003 at about 1.30pm at Nabauto, the victim had just returned from town after having some beer. He rested at the front porch of his house and later fell off to sleep. The appellant put his hand inside the victim’s pocket and stole his wallet which contained $100.00 (FJ). The victim came to know about the theft when he discovered that his wallet was missing.

The matter was reported to the Police and an investigation took place in which the accused was located, arrested and interviewed. He admitted the offence. The cash was not recovered.

Case No. 32 of 2003

On 10/2/03 at 1600 hrs, the victim was loading some hardware materials in a vehicle when he saw the appellant inside his shop. The victim noticed an N-100 size truck battery missing. He checked around for the appellant but could not see him. The victim suspected the appellant to have taken the battery.

The appellant was located in town and he admitted the offence. He was escorted to the Police Station and locked in the cell as he was drunk.

The next day the appellant was interviewed under caution and admitted the offence. He stated that he stole the battery so that he could sell it and get some money.

The Battery was recovered.

Case No. 33 of 2003

On the 7th day of February 2003 the victim was alone in his shop. The appellant came into the shop and went straight to the clock section. He picked up one clock and hid it inside his pants and went outside without paying it.

The victim than rang the Police and reported the matter. According to the victim’s statement he stated that on 29/01/03, the said the appellant stole 2 dozen of enamel bowls valued at $28.00 and on the 1.2.03 the same accused stole another table clock valued at $10.00.

All items not recovered.

The appellant was arrested, interviewed and charged for three counts.

The Appeal Grounds

In a handwritten letter the appellant raised the following grounds in his appeal:-

1. The learned magistrate failed to maintain his judicial neutrality in weighing all evidence against me and gave full advantage to the prosecution.

2. Very little consideration was given to my plea of guilt to all charges against me in regards to the recovered properties with co-operation I contributed to police in locating the items in due course of the investigation.

3. Instead of considering facts at hand with present circumstance in relation to the cases indicated above. The Savusavu Magistrate Court enormously gathered excessive weight from my previous convictions that resulted in severity of the sentences.

4 I find the five (5) years sentence to be harsh and excessive in comparison to similar cases which I shall submit specific details should I get the chance to have my appeal heard and also submit fresh mitigation.

The Appeal

The Appellant was warned of his right to counsel and specifically waived that right. He handed up helpful written submissions and rested his case.

The Sentence

In a careful sentencing decision the learned Magistrate noted the plea of guilty in all 7 cases but balanced that out against the 28 previous convictions the last of which was the 9th of March 2000 for three years imprisonment on similar offences. The Court noted that the prisoner was a repeat offender.

The mitigation of the prisoner was noted including his personal pleas that he was a changed person, active in a youth group, helping his village elders to stamp out the sale and use of marijuana. That he had an intention to become married and would be the sole breadwinner to look after his family.

The learned Magistrate formed the conclusion that the accused had NOT really changed for the better and was of the opinion that he had failed to learn any lessons from previous terms of incarceration. He had no respect for people and property and that he must be put away for longer periods so that the public at large can feel safe for their lives and properties without having a person like the prisoner around. The learned Magistrate was of the opinion the prisoner was a menace to society. An effective term of imprisonment of 5 years was imposed.

However having made the arithmetical calculation (detailed at p1 of this judgment) there was no consideration given to the totality of the penalty.

Sentencing Principle

The power to order sentences to run consecutively is subject to the “totality” principle. c.f. Thomas : Principles of Sentencing 2nd Edition page 53) The principles are described in Thomas at page 56 in this way:-

“The effect of the totality principle is to require a sentence if he was passed a series of sentences, each properly calculated in relation to the offences for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is just and appropriate.”

Decision

I find the learned magistrate correctly applied appropriate and not excessive penalties in respect of each offence. However the overall characteristics of this offending I generally find to be drunken, half witted, hapless and cheeky thefts. Real condemnation has to be reserved for the most serious charge where he ended up in a drunken stand of with police that should not be tolerated. That sentence (case 28/03) was properly marked by the learned Magistrate.

It was however discrete offending separate from the other larcenies and minor offending by the appellant. As I have earlier said, while there can be no objection to the accumulation of consecutive sentences, the failure of the learned magistrate to then record consideration of the overall penalty leaves me with the uncomfortable impression that this important aspect of the sentencing process was ignored.

Bearing in mind my characterisation of the generality of this offending, other than the most serious charge, I find the overall aggregate term does appear unduly harsh in its totality. In short the prisoner did not deserve 5 years jail for this type of offending.

Conclusion

I accordingly grant the appeal. The sentence in the Court below is quashed. In respect of criminal case 32/03 (the battery charge) and 33/2003 (the clock charge) I impose a sentence of 12 months imprisonment but order it to be served concurrently with criminal case 28/03. The effective sentence is thereby reduced from five to three years.

Gerard Winter
Judge

At Labasa
25 March, 2004