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Bose v State [2008] FJHC 309; HAM106.2008 (7 November 2008)

IN THE HIGH COURT OF THYE FIJI ISLANDS
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO: HAM 106 of 2008

TEVITA BOSE

V

THE STATE

Appellant in Person
Ms H Tabete for the State

Date of Hearing & Ruling: 7 November 2008

RULING

1. Tevita Bose was convicted following his guilty plea against a charge of robbery with violence, contrary to section 293(1)(b) of the Penal Code Cap 17. He was convicted on 11 January 2006 and sentenced to 5½ years imprisonment on 25 January 2006.

2. This appellant filed leave to appeal out of time after his co-offender was sentenced by the High Court recently to 3 years imprisonment. On the basis of his co-offender’s sentence he submits that his sentence was unfair, harsh and excessive. Leave was granted to appeal against sentence only.

3. In reviewing the appellant’s letter setting out his appeal grounds, there are only two issues that were relevant to his appeal. These were:

(i) Whether his guilty plea was properly discounted;

(ii) The disparity in the sentence he got 5½ years imprisonment, compared to 3 years imprisonment that his co-offender received

4. Ms. Tabete for State prepared and filed written submissions which were helpful. In court she submitted that the guilty plea was considered by the trial Magistrate as mitigation and that should be adequate. As regard the disparity in the sentence given to the appellant, she submits that the appellant’s co-offender was a first offender, hence the lighter sentence.

5. I have reviewed the sentence in this case and it was the follow issues were of concern and needed consideration:

(i) Guilty pleas must be treated separately from mitigation factors and discounted after the mitigation and the aggravating factors have been accounted for;

(ii) In choosing the starting point of a sentence the court must state the factors it considers relevant in choosing that starting point for the case. The choice must be reasoned and not just pulled out of thin air;

(iii) The disparity of the sentence claimed by the appellant in this case.

6. In considering each of the above, I find that the starting point of five years on the facts of this case was proper. However, sentencing court must provide the basis for choosing starting points within the tariff band: Naikelekelevesi v The State [2008] FJCA 11. The prevalence of this type of criminal offending and the need to deter criminal activities of this kind and protect the right of ordinary citizen’s to go about their life without fear of being attacked, requires the court to give high starting points. This was a street-robbery case and its prevalence is on the rise.

7. I agree that there is a disparity in the sentence but the disparity is not due to the trial Magistrate. It was important for the High Court to have been informed of the appellant’s sentence before the co-offender was sentenced.

8. On the guilty plea, the court in this case should have discounted the sentence by a fourth or a third: Hem Dutt v The State [2006] FJCA 59. It did not and in that regard the sentence was harsh and excessive. I would therefore reduce the sentence by 2 years to 3½ years imprisonment. I also note that this outcome addresses the complaint of the appellant about disparity in sentence.

9. In conclusion, the appeal against sentence partially succeeds. The appellant’s sentence of 5½ years imprisonment is to be substituted with 3½ years imprisonment.

Orders

10. I make the following orders:

(i) The appellant’s sentence of 5½ years imprisonment is substituted with 3½ years imprisonment with effect from 26 January 2006;

(ii) Conviction is upheld.

Isikeli Mataitoga
JUDGE

At Suva
7 November 2008