Raogo v The State [1997] FJHC 38; Haa0004j.1997b (17 March 1997)

Fiji Islands - Raogo v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0004 OF 1997

BETWEEN:

MATURINO RAOGO
Appellant

AND:

THE STATE
Respondent

Appellant in Person
Ms. L. Tabuya and Mr.hindi for the State

JUDGMENT

On the 23rd of December 1996 the appellant was convicted in the Labasa Magistrate Court after he pleaded guilty to an offence of Criminal Trespass which alleged that he had "... entered by night the dwelling house of (the complainant) with intent to annoy (her)."

However a cursory examination of Section 197 of the Penal Code (Cap. 17) discloses that, although the appellant was charged pursuant to Subsection (2) i.e. trespass at night, the Particulars provided, especially as to the alleged intent, are more appropriate to a charge under Subsection (1) i.e. trespass by day.

The distinction between the offences is neither immaterial or pedantic as the penalties quite clearly indicates that 'trespass by day' is considered a much less serious offence albeit more difficult to prove, than 'trespass at night'.

I am satisfied however that the appellant well understood the charge against him and no prejudice or injustice has been occasioned by the 'surplusage' wrongly included in the Particulars of Offence.

That is not to say however that the laxity exposed by the defective charge in this case is not a matter for concern. Clearly it is. (See: The observations of Grant C.J. in Jeru Din v. R. 18 F.L.R. 222 at 223 and D.P.P. v. Solomone Tui 21 F.L.R. 4 at 6)

Be that as it may upon his conviction the appellant was sentenced to 9 months imprisonment. He now appeals against the sentence on the following grounds:

(1) That the sentence is both harsh and excessive in relation to the offence;

(2) That the evidence tendered in no way supported the charge;

(3) The sentence should have been ordered to be served concurrently with a 4 year sentence which was subsequently passed upon him;

(4) That the trial magistrate based his sentence on the appellant's previous convictions rather than on the crime itself.

At the hearing of the appeal the appellant tendered a written submission elaborating on the above grounds of appeal with the exception of ground (2) which the appellant conceded '(should) be dismissed since the appeal is for sentence appeal and not conviction appeal'. I turn then to consider grounds (1) & (4).

The trial magistrate in sentencing the appellant is recorded to have said:

"Accused has 13 previous convictions including 2 for criminal trespass. He seems to be a danger type of person. In my view this calls for a deterrent jail sentence. Accused is sentenced to 9 months imprisonment."

It is immediately apparent that in sentencing the appellant the trial magistrate nowhere referred to his plea of guilty which is undoubtedly a mitigating factor, nor has he referred to any aggravating features in the case such as to any damage that might have been caused in gaining entry into the complainant's house or to any thing the appellant did or said after gaining entry. Indeed the material facts outlined by the prosecutor merely states that:

"When (the complainant) asked him to go away he (the appellant) went away."

Furthermore and with all due regard to the trial magistrate, I confess to some difficulty in understanding his observation that the appellant 'seems to be a danger type of person'. Clearly that was not a reference to the circumstances of the offence. State Counsel for her part was unable to enlighten the Court either, except to suggest that that was a reference to the appellant's record of previous convictions.

If indeed that was a reference to the appellant's past record then in my view, the trial magistrate has plainly erred in allowing himself to be unduly influenced by it. As clearly pointed out there were no aggravating features in the commission of what might be considered a trifling offence nor was there any evidence to support any 'intent to annoy' which, in any event, was incorrectly included in the 'Particulars of Offence'.

Furthermore in this regard the Fiji Court of Appeal in Willie Siu v. R. 17 F.L.R. 197 in reducing the sentence in that case held:

"(1) It is a well recognised principle that a severe sentence for a trifling offence cannot be justified merely on the ground that the offender has had many previous convictions, ...

(2) In addition a harsh sentencing policy was wrong as (i) in the case of a man with so many previous convictions it would have a limited deterrent effect (ii) it might reduce the chance of his rehabilitation by giving him a sense of injustice and (iii) it would not encourage a plea of guilty, though such a plea might be taken into consideration on sentence."

In the circumstances the appeal is allowed and the sentence is accordingly reduced to one of 4 months imprisonment with effect from the date of sentencing namely, the 23rd of December 1996.

D.V. Fatiaki
JUDGE

At Labasa,
17th March, 1997.

Haa0004j.97b