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Qalobula v State [2013] FJHC 290; HAM247.2012 (10 June 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Miscellaneous Case No.: HAM 247 of 2012

BETWEEN:

SEKONAIA VOLAU QALOBULA
Applicant

AND:

THE STATE
Respondent

COUNSEL : Ms Vasemaca Tamanisau for the Applicant
Mr M Vosawale for Respondent

Date of Hearing : 14th May 2013
Date of Judgment : 10th June 2012

JUDGMENT

01. Sekonaia Volau Qalobula (hereinafter "the appellant") was charged for one count of Damaging Property contrary to section 324 of the Penal Code. Act 17 and one count of Larceny contrary to section 259 and 262 of the Penal Code Cap 17. The Charges were filed at the Suva Magistrates Court on 19th day of November 2007.

02. The particulars of offences were:

01. Sekonaia Volau Qalobula on the 8th day of November 2007 at Suva in the Central Division wilfully and unlawfully damaged the window of private car registration number DW 290 valued at $160.00 the property of Alisha Sahu Khan.

02. Sekonaia Volau Qalobula on the 8th day of November 2007 at Suva in the Central Division stole a Nokia mobile phone valued at $200.00,1 pair of sunglasses valued at $120.00 and a pair of glass earrings valued at $50.00 all to the total value of $570.00 the property of the said Alisha Sahu Khan.

03. On 14th February 2012, the charges in respect of Criminal Case No: 2012/2007 was read out to the Appellant. He pleaded guilty to the charges and admitted the summary of facts.

04. On 09th July 2012, he was sentenced to a prison term of 16 month for each count run concurrent to each other.

05. Further learned Magistrate ordered the prison term of 16 months to run consecutive to the sentence imposed in case No: CF/2100/2007. In CF/2100/2007 the learned Magistrate has imposed 16 months prison sentence on 09th July 2012.

06. The Appellant drafted his grounds of appeal before Legal Aid Commission came to represent him in this case. In the draft he has not put the date. But the Respondent considered that the appeal filed within time.

07. The Appellant has laid out 3 grounds of appeal however after receiving proper legal advice he confined to his appeal on one ground against the sentence. The ground of appeal against the sentence is that;

(i) That the learned Magistrate failed to consider the factors relating to the application of consecutive sentence and the totality principle before making order for a consecutive sentence.

08. Section 22 of sentencing and Penalties decree states as follows:

"22 (1) Subject to sub section (2), every term of imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentence of imprisonment.

(2) Sub section (1) does not apply to a term of imprisonment imposed-

(a) In default of payment of a fine or sum of money;

(b) On a prisoner in respect of a prison office or as a result of an escape from custody;

(c) On a habitual offender under Part III;

(d) On any person for an offence committed while released on parole; or

(e) On any person for an offence committed while released on bail in relation to another offence.

09. In Tuibau v State [2008] FJCA 77; AAU0116.2007S (7th November 2008) the court of Appeal commented on the totality principle in that:

"the totality principle is a recognised principle of sentencing formulated to assist a sentence when sentencing on offender for multiple offences. A sentencer who impose consecutive sentence for a number of offences must always review the aggregate term and consider whether it is just and appropriate when the offences are looked at as a whole"

10. Upon perusal of the Sentence the learned Magistrate did not consider the factors relating to the application of consecutive sentence and the totality principle before making orders for consecutive sentence. However section 22 does give discretion to the Magistrate to exercise the same in a judicial manner and this would require an enquiry into whether the circumstances warrant a consecutive sentence of a concurrent sentence.

11. In Singh v State [2009] FJHC 233; HAA 009.2009 (26th October 2009) the court considered sentence and the Totality principle as well the considerations that ought to be made. It stated as follows:

When applying the totality principle the court must bear in mind that principle set out in Paula Nauma v State [2002] FJHC 171:

"the court in applying the totality principle must also be careful not to give an impression to offenders that having committed one serious offence there is little to lose by continuing to offend. The massage must to made quite clear the more crimes an offender commits the longer the sentence is going to be. The totality principle is not some form of judicial discount for multiple offending. Hence the steps to be followed when sentencing an accused person for multiple offence are:

(a) Considering the aggregate or total sentence which must reflect the overall culpability of the sentence and the totality of his conduct.

(b) When an offender is made subject to more than one sentence of imprisonment, such sentence may be either concurrent or consecutive.

(c) If concurrent sentences are being imposed, the most serious offence should receive the sentence which reflect the totality of offending. The length of other concurrent sentences should vary according to their gravity.

(d) Consecutive sentences should only be reserved for offences which are separate or unrelated or where they are totally different to their gravity.

(e) Where offences are unrelated, consecutive sentences must be proportionate to the totality of the conduct. However if this will result in a serious of short sentences which each individually fails to reflect the gravity of each offence charged, then longer concurrent sentences or a combination of concurrent and consecutive sentences may be used.

12. The appellant has previous convictions. He is a father of one child and sole breadwinner of the family. He is remorseful on what he did and promised that he would not reoffend under any circumstance.

13. The aggravating factors were that he had broken the window of the car and stolen items estimated about $570.00. The damage to car window was estimated about $160.00.

14. Similar charges had been brought against the Appellant in the case No: 2100/2007. But the date of offence is different. Same sentence was pronounced on the same day in both cases.

15. Although charges filed in both cases similar but not committed in the same transaction of this case. The date of offence of the case No: 2100/2007 is 23/08/2007. In both cases the Appellant pleaded guilty to the charges thus saved the court time.

16. The learned Magistrate did not consider the factors relating to the application of consecutive sentences and the totality principle before making orders for consecutive sentence.

17. I agree with learned Magistrate's sentence passed in this case. Considering Appellant's early guilty plea and other circumstances of the case I order the sentence passed in this case to run concurrent to the sentence passed in case No: 2100/2007.

18. The Appeal against the sentence is allowed subject to above variation.
    

19. Appellant has 30 days to appeal.

P Kumararatnam
JUDGE

At Suva
10/06/2013