Download Epeli Labalaba v State Judgement 3 - Law Fiji

IN THE HIGH COURT OF FIJIAT SUVAAPPELLATE JURISDICTIONCrim. App. Nos: 79, 80, 81 & 82 of 2005Between:And:EPELI LABALABATHE STATEAppellantRespondentCounsel: Appellant in PersonMs V. Lidise for StateHearing: 5 th August 2005Judgment: 12 th August 2005JUDGMENTThe Appellant was convicted on four separate files ofrobbery with violence and unlawful use of motor vehicle.He was sentenced to a total of 8 years imprisonment on the21 st of April 2005. He appeals against the totality of thatterm. The learned Magistrate sentenced on all filestogether. Similarly I will deal with all four appealstogether.In Case No. 116 of 2003, he was charged with anotherof robbery with violence. It was alleged that between the2 nd and 3 rd of May 2003 at Navua, the Appellant was armedwith an offensive weapon and robbed Alfred Benjamin McGowenof items to the total value of $1,750.00. The Appellantand his accomplice initially pleaded not guilty. There

7sentences passed were justified on the facts. They did notexceed the tariff.The Appellant submitted that the sentences were to beserved consecutive to the sentence he was then serving.From the record, it appears to run from the date it wasimposed. However in the absence of any specific order thatthe sentence should run concurrent to the previous tariffimposed, section 28(4) of the Penal Code applies. Thatsubsection provides:“Where a person after conviction for an offenceis convicted of another offence, either beforesentence is passed upon him under the firstconviction or before the expiration of thatsentence, any sentence of imprisonment which ispassed upon him under the subsequent convictionshall be executed after the expiration of theformer sentence, unless the court directs that itshall be executed concurrently with the formersentence or any part thereof:”The Appellant said that when the sentence was passedhe had served 5 months of a 9 month term (imposed after asuccessful appeal against a two year term) and that the 8year term would not start to run until he had served his 9month term. That offence was one of school breaking.Given the short period remaining, I consider that the 8year term should have run concurrent to the remaining 4months and I substitute an order that the 8 year term runconcurrent to the 9 month term he was serving at the timehe was sentenced. I am unable to make any orders about anysubsequent sentence passed however because there is noappeal before me in relation to any other case. If he wassubsequently sentenced to an 18 month term for house