Osborne v The State [1996] FJHC 74; Haa0064.96 (27 November 1996)

Fiji Islands - Osborne v The State - Pacific Law Materials

IN THE HIGH COF FIJI

(AT SUVA)

CRIMINAL APPEAL NO. HAA 0064/96
(NAUSORI MAGISTRATES COURT CASE NO. 494/96)

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SOKO OSBORNE
Appellapan>

AND:p class=MsoNormal align=center style="text-align: center; margin-top: 1; margin-bottom: 1">: 1">

THE STATE
Respondent

Appellant in person
W. Clarke for the Reent

JUDGMENT

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I allowed the appeal against sentence on 26 November and ordered the Appellant's releaseow give my reasons.

The Appellant was charged with one count of disorderly iour contrary to Section 4 of the Minor Offences Act - Cap 18. On 16 July 1996 he pleaded gded guilty before the Nausori Magistrates Court (V.D. Nadakuitavuki Esq). According to the record the only facts placed before the Court were "facts as charged". The facts as charged merely state that the Appellant behaved in a disorderly manner. There are no particulars of the form that the disorderly behaviour took. There is nothing in the record to show that the Appellant agreed to these "facts".

The only mitigation recorded is that the Appellant is 42 years old and unemplout when he appeared before me he told me that he was a marr married man with 3 children at secondary school, that he was leasing some farmland, that he had purchased a tractor with a loan and that he was the sole breadwinner. In other words only a very small part of the Appellant's relevant personal circumstances were brought out in the Magistrates Court.

The Appellant was sentenced to 12 months imprisonment, the maximum sentence available for this offence. Thident Magistrate explained ined that this was the sixth occasion on which the Appellant had been convicted of behaving in a disorderly manner and he referred to Section 4 and the sentencing provisions therein contained.

On appeal, Mr. Clarke, in the best traditions of the Office of the DPP conceded that the failure to place the full fbefore the Court and to obto obtain the Appellant's agreement to them was a serious procedural irregularity. He also conceded that the Appellant's last conviction for this type of offence having been recorded more than 10 years ago the Resident Magistrate erred in placing so much reliance upon it.

As this Court has repeatedly emphasised it is the duty of a Resident Magistrate to draw out all available mitigation particularly where an accused is unrepresented. Failure to do so is another procedural irregularity.

The Appellant pleaded guilty and therefore no appeal against conviction is open to him. Whatever the precise facts he was clearly a nuisance in a public place. While such behaviour has to be punished I am satisfied that taken together with the procedural irregularities referred to, the sentence imposed was excessive and wrong in principle. It is for that reason that I varied the sentence to enable the Appellant to be immediately released.

I wish to add two further observations. The firsthat the record suggests that the matter was dealt with over hastily: that is not satisfactsfactory. The offence may be minor within the meaning of the Act but no one should be sentenced let alone imprisoned for any offence however minor without the most careful consideration of all the circumstances and without strict adherence to the procedural requirements of the Criminal Procedure Code.

Secondly, the record includes an affidavit sworn by one Sergeant Mohamadiq on 6 November 1996. It purports to set out the circumstances of the offence committed tted by the Appellant. Doubtless it was filed because either the Police or the Court realised that the facts did not sufficiently appear from the record. The filing of this Affidavit did not comply with the provisions of Section 320 of the Criminal Procedure Code and the filing of such further evidence on appeal should, without order of the High Court, be avoided.

M.D. Scott
JUDGE

lang=EN-GB> 27 November 1996.

Haa0064.96