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Tabulawaki v State [2008] FJHC 76; HAA021.2008 (9 May 2008)

IN THE HIGH COURT OF THE FIJI ISLANDS
APPELLATE JURISDICTION
AS SUVA

Criminal Appeal Case No. HAA 021 of 2008

BETWEEN:

FILIPE TABULAWAKI
Appellant

AND

THE STATE
Respondent

Counsel: Ms. Alumita Lekenaua for the Appellant
Ms. Ana Tuiketei for the Respondent

Date of Ruling: 9 May 2008

RULING

1. Filipe Tabulawaki, you were jointly charged with one Iliesa Viribale on one count of House Breaking With Intent To commit a Felony: contrary to section 302 of the Penal Code Cap 17. On 21 September 2007 you were sentenced to 3 years imprisonment. Your co-accused Iliesa Viribale was sentenced to 12 months imprisonment suspended for 2 years.
   
2. This is your appeal against sentence.
   
3. From the court record the following facts are evident. You pleaded guilty to the charge at the first available opportunity. In mitigation the court took into consideration the fact that you were the sole breadwinner of your family, that you expressed remorse and that you were renting a house. The court also considered seven aggravating factors, most of which were incorrectly considered.
   
4. In her sentencing consideration the learned Magistrate accepted that the role played by both the accused persons was identical, namely, that of ‘guard’ while others committed the substantive offence. But the sentences were substantially different as already referred to above.
   

Grounds of Appeal and Submissions

5. For the appellant, his counsel substituted the following grounds for the grounds earlier submitted before the Court Records were available:
   
   1. The learned Magistrate failed to discount the appellant’s guilty plea separately from other mitigating factors;
      
   2. The learned Magistrate erred in law in considering irrelevant factors in her sentence consideration;
      
   100. The learned Magistrate erred in law and fact in not justifying how 3 years imprisonment was reached;
        
   4. The learned Magistrate erred in law and fact when imposing different sentence as per the co-offender
      
6. The State, as respondents have conceded some of the grounds of appeals, namely, that the 3 years sentence may be harsh and excessive in the context of the role played and the disparity in the sentence passed by the Learned Magistrate. The State also conceded that it was incorrect for the learned Magistrate to have taken into consideration as an aggravating factor the assault on the police officer, when the count alleging that offence was withdrawn by the prosecution.
   
7. The Court wish to express its concern at the lack of consideration by the learned Magistrate of the principles of parity in sentencing of co-accused and the lack of any reference to case law to support the decision she has reached.
   
8. I wish to record my appreciation to Ms Lekenaua Legal Aid Counsel for the appellant for her written submissions, which assisted the court greatly in its determination. The State Counsel Ms Tuiketei is commended for her fairness in making the concession she made.
   

Tariff

9. In the light of the above, this court will review the sentence by adopting a rehearing approach. It is now established that the sentence tariff for the House Breaking Entering and Larceny, contrary to section 300 of the Penal Code Cap 17 is 2-3 years: Vusonitokalua v The State [2005] FJHC 195: HAA 056 of 2005.
   
10. I would take the starting point in this case as 2 years imprisonment. This applies equally to both the appellant in this appeal and his co-accused.
    
11. In the case of the appellant the following mitigating factors should have been considered relevant in the sentence determination:
    
    • Sole breadwinner for his family;
    • In paid employment
    • Minor role played
    • Express remorse in court
      

For the above I would reduce the sentence by 9 months to 15 months imprisonment.

12. The aggravating factors that should have been considered by learned Magistrate are as follows:
    
    • Use of implements such as bolt cutter, pliers and pen knife suggests some prior planning
      

For the above factor I would add 3 months to the sentence to make the sentence 18 months imprisonment.

13. It should be made clear that in sentencing the appellant in this case, the learned Magistrate erred in considering his previous conviction, firstly because they were already spent convictions under the Rehabilitation of Offenders (Irrelevant Convictions) Act 1997. The previous convictions were irrelevant considerations. Secondly, in taking it into consideration the previous conviction, the appellant was being sentenced again for something he has already served: see - Tikomainiusiladi v The State [2008] FJHC 18; HAA 134 of 2007 and Tuibua v The State [2005] FJHC 188; HAA 067 of 2007.
    
14. For the guilty plea at the first opportunity, a reduction in the sentence by 6 months is justified. The sentence now is 12 months imprisonment. This sentence restores parity in sentence, which the appellant justifiably claimed was unjust. In Bote v The State FJCA 58; AAU 011 of 2005, the Court of Appeal observed:
    

‘ The parity principle applies where the sentences imposed on co-offenders are so disproportionate as to leave the offender with the larger sentence with a justifiable sense of drievance.’

15. 
    
16. Should this sentence be suspended? The law requires that the court be satisfied that there exist special circumstances that would justify the suspension of a custodial sentence: DPP v Jotame Pita (1975) 20 FLR 5, at 7 and Baukeilagi v The State [2007] FJHC HAA 086 of 2007.
    
17. The appellant in this case has already demonstrated that when given an opportunity he may rehabilitate and turn away from criminal activities. This court will give show mercy and give the appellant another opportunity to make a new start by ordering that the balance of his 12 months sentence be suspended for 2 years forthwith.
    

ORDERS

18. This Court will make the following orders:
    
    1. The sentence in the Magistrate Court is set aside and substituted with 12 months imprisonment effective from 21 September 2007;
       
    2. The balance of the sentence is to be suspended for 2 years with immediate effect.
       

Isikeli Mataitoga
JUDGE

At Suva
9 May 2008.