Baivou v The State [1997] FJHC 162; Hbm0048.1997l (30 October 1997)

Fiji Islands - Baivou v State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LAUTOKA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HBM0048 OF 1997L

BETWEEN:WEEN:

TOMASI LEWAI KAMA
APPELLANT

AND:

STATE
RESPONDENT

Thellant In Lakeba (eba (Did not appear)
Mr Auld for the Respondent

Date of Hearing: 30th October 1997
Date of Judgm30th October 1997

JUDGMENT

The Appeal peal was before me on the 30th October 1997. Mr AULD appeared for the Respondent/State. The Appellant did not appear, he is in Lakeba. I decided to go ahead with the appeal in any event, even if I had not, I would have used my revisionary powers in this matter because there seems to me to be a glaring error, shall I say on the face of the Magistrate's sentencing remarks.

My ruling will be as follows:

The Appellant was convicted of Dangerous Driving Causing Death on his own admission in the Rakiraki Magistrates Court on the 22nd November 1996.

The Appellant in September 1997 finally got around to bringing an application to appeal the sentence. It seems from correspondences addressed to this Court that the Appellant finally had access to a visiting Justice. It was Mr NAQIOLEVU sometimes immediately prior to September 1997 and it was that which prompted him to appeal this matter.

There are several matters that are of issue. The first one is whether leave should be granted to appeal out of time. The general principle in these circumstance that the Appellant has a good reason for the delay. I consider that one has to be a little understanding and lenient perhaps with self-represented persons. This Accused was self-represented right through the proceedings. He has gone to prison of course. In prison, he did not have the necessary access to lawyers and law books as he should and it was not until he obtained that access by way of a discussion with a visiting Justice that his legal rights and probable remedies were put to him.

In my view I think that is a reasonable reason for his delay. In fact one could perhaps say that as soon as he was able to get the advice through the visiting Justice system he acted fairly promptly after that. So I do grant him leave to appeal out of time.

In respect of his appeal it relates to sentence and it would seem to me that he has good grounds. He was sentenced to two and half years imprisonment. It seems that there certainly was an aggravating circumstance. He was unlicensed at the time having received a disqualification.

I am also prepared to accept that Dangerous Driving Causing Death is an offence for which a prison sentence is applicable, although it seems on occasions that it is applied more often perhaps then it should be.

In this case however, because of the aggravating circumstance of driving without a licence (bearing in mind that he was disqualified in the Levuka Magistrates Court in July 1996), I am in little doubt that he should have been sentenced to imprisonment. What concerns me is that the sentencing Magistrate most definitely seems to have taken into account circumstances which were not in the facts submitted before him and thus were not in evidence before him.

The sentencing Magistrates and in fact all judicial persons can only sentence on the evidence (in this case the admitted facts) before them. It seems that the material of sentencing Magistrate referred to such as blood marks and skid marks and those sorts of things can be said to be aggravating no doubt if they are properly before him. They were not and accordingly in my view the sentencing must go ahead only on the admitted facts. Those admitted facts in this offence were really quite simple in that an admission was made the accused failed to negotiate a right hand bend and the vehicle tumbled over.

Mr Auld appearing for the State accepted that this error was rather apparent but in no way did it concede the appeal.

Taking all of the matters in mind I consider that the sentence imposed when applied to the admitted facts and the evidence properly before the Magistrate (I emphasise properly) then the sentence does appear to be manifestly excessive.

Accordingly, I will set aside the two and half years sentence. In its place I impose a sentence of one and half years i.e. 18 months imprisonment.

I would ask that a copy of this ruling be sent to the Officer in Charge, Lakeba Prison as soon as possible as I understand with the Statutory Remission probably be made that the Appellant will be out for Christmas.

JOHN D. LYONS
JUDGE