Afiz v The State [1990] FJHC 41; HAA0011j.1989s (27 April 1990)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NOS. 11 & 12 OF 1989

Between:

ABDUL AFIZ
s/o Abdul Aziz
Appellant

v.

STATE
Respondent

Mr. R. Chand for the Appellant
Mr. S. Senaratne for the Respondent

JUDGMENT

On the 24th of February, 1989 the appellant was released on bail pending appeal by Palmer, J. He had been sentenced to a total of 42 months imprisonment by the Nausori Magistrate Court upon his conviction for two offences of Cattle Theft. The appellant was the second accused on each charge and at the time of being bailed he had already served 6 weeks of his sentence.

Unfortunately the appeal was not treated with any degree of expedition and only came to be heard on the 23rd of January, 1990. In the event the appellant has been at liberty, albeit on bail only, for over a year now.

It must be said that whilst an appellant on bail pending appeal cannot assume that he will not be returned to serve his prison sentence should his appeal fail nevertheless this court cannot ignore the inordinate delay in bringing these appeals on for hearing and the inevitable hope that such an order necessarily engenders in an appellant to whom it is granted.

In his petitions of appeal the appellant has appealed against both his conviction and sentence on numerous grounds from which 2 principal complaints may be distilled. The first, against conviction is to the effect that the appellant's guilty pleas were not unequivocal and the second is that the sentences were harsh and excessive.

As to the appeal against conviction the appellant lists no fewer than 6 complaints against both the police and trial magistrate but none of these are supported by an affidavit nor in my view can they be inferred from the court records.

In particular learned counsel for the appellant complains that neither the charge nor the facts were explained to the appellant. It is correct that the trial transcripts nowhere records that either event occurred but what is clearly recorded is that the appellant pleaded "guilty" and "admitted the facts" outlined by the police prosecutors.

As was pointed out by learned State Counsel in opposing the appeals it is difficult to imagine what the appellant was pleading guilty to or admitting if neither event had occurred. Furthermore counsel points to the additional admission of the appellant in mitigation that he "committed this offence" because he was poor.

In my view in the absence of affidavit evidence to the contrary this court is entitled to assume that the trial of the appellant in the Magistrate Court did follow its normal course and that the trial magistrate would have complied substantially with the provisions of Section 206 of the Criminal Procedure Code Cap. 21.

There is no merit at all in any of the appellant's grounds of appeal against conviction which is accordingly dismissed.

As for sentence however, the appellant has a previous conviction for an unrelated offence in 1980 and can therefore be treated as a first offender for all intents and purposes. In respect of each offence the appellant was given consecutive sentences of 19 months and 23 months imprisonment making a total of 42 months.

The offences occurred within a week of each other and were identical in numerous respects. They were dealt with by the same magistrate at the same time and although 2 bulls were stolen with different owners nevertheless the offences could have been properly dealt with by imposing concurrent sentences treating them as it they were committed in a single criminal activity.

In failing to so treat the offences I am of the view that the learned trial magistrate imposed an unduly harsh aggregate sentence.

Nevertheless persons who steal and slaughter the working cattle of farmers must expect to lose their liberty and a custodial sentence was clearly indicated in these two cases. The appellant has already served 6 weeks in prison and has presumably learnt a salutary lesson from that 'short, sharp, shock'.

I am however constrained by the inordinate delay in hearing this appeal for which the appellant bears no blame and reluctantly will not return the appellant to prison. Nevertheless he will not go 'scot-free' and I propose to adopt the exceptionally lenient course suggested by the appellant's counsel.

The sentences are accordingly quashed and in substitution therefor I imposed the following:

(1) In Nausori Criminal Case No. 85/89

The appellant is sentenced to 18 months imprisonment; and

(2) In Nausori Criminal Case No. 86/89

A sentence of 18 months imprisonment is also imposed.

Both sentences are suspended for 3 years from the date hereof and ordered to be served concurrently.

In addition the appellant is fined $300 to be paid into the High Court Registry within 28 days in default 6 months imprisonment. Of the fine if paid the sum of $170 is to be paid as compensation to Bijendra Prasad Shandil s/o Latchman Prasad Shandil and a sum of $100 to Chandar Pal s/o Bihari.

(D.V. Fatiaki)
JUDGE

At Suva,
27th April, 1990.

HAA0011J.89S