Fou v The State [1996] FJHC 10; Haa0019j.96s (10 May 1996)

Fiji Islands - Fou v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 19 OF 1996

Between:

1. MALAKAI FOU
2. JEKE MAI
Appellants

AND:

Respondent

Appellants in person
Mr. S. Karavaki for thpondent

JUDGMENT

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> This is an appeal by MALAKAI FOU and JEKE MAIA, the first and seaccused in Cr. Case No. 159. 1597/95 against their sentence of 9 months' imprisonment imposed on them on 2 July 1995 by the Magistrate's Court at Suva for escaping from lawful custody contrary to section 138 of the Penal Code.

The first accused told the Court athearing of the appeal that three of them were charged and each was given a sentence of 9 mo 9 months' imprisonment but the third accused on his appeal had his sentence reduced to 3 months. He said that he should get the same sentence. The reason he gave for escaping was that he was not allowed visitors. He told the Court that he is serving a sentence of 3 1/2 years for robbery passed on him in May 1995. He was at large for eleven hours only.

The second accused said that because the officer in charge of Minimum Sey prevented his transfer toer to Levuka Prison he committed this offence. He said that the sentence is harsh bearing in mind that the third accused's sentence was reduced to 3 months on appeal. He was out for 6 hours when he was recaptured. He told the Court that he is serving a 2 year sentence of imprisonment for shop breaking and damaging property passed on him in February 1995.

In deawith this appeal, since the appellants raised the matter of third accused's appeal, I bore bore in mind PAIN J's decision in that appeal by the third accused VILIAME NAITUKU (Crim. App. HAA3/96). His Lordship while reducing the sentence gave his reasons for doing so in his judgment setting out the factors which ought to be taken into account in passing sentence in an offence of this nature. I adopt the same reasoning here for I consider that the facts and circumstances of this appeal are no different from those of the third accused.

At this point in time the offence has become prevalent and heavy sentences ought to be meted out. Bcause I intend to reduce thce the sentence for the reasons stated in PAIN J's decision it should not be regarded as a precedent. However the sentence has to be appropriate to the facts surrounding each case. It was not a serious case of its kind and the appellants' freedom was short-lived. In dealing with this case I am not oblivious of the fact that it is a matter of great concern to the community when an offence of this nature is committed giving rise to, in most cases, expenditure of large sums of money in recapturing prisoners.

For these reasons the sentence of nine months' imprisonment imposed on each appellant is quashed and a sentence of four months' imprisonment substituted consecutive to the sentence being served.

The appeal is allowed.

At Suva
10 May 1996

Haa0019j.96s