Pe v State [1997] FJHC 66; HAA0024D.1997S (29 May 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.0024 OF 1997

Between:

SAVENACA PE
APPELLANT

And:

THE STATE
RESPONDENT

Counsel: Appellant in person
Mr. P. Petaia for respondent

Hearing: 29th May 1997

Decision: 29th May 1997

ORAL DECISION OF PAIN J

The Appellant has appealed against a sentence of nine months imprisonment imposed in the Magistrates' Court on a charge of escaping from lawful custody.

On the 19th September 1995 the Appellant was sentenced to 4 years imprisonment on a charge of robbery with violence. With remission that gave him a release date of 19th September 1998. Accordingly he would have been eligible for consideration for extramural work on 20th September 1997.

Overnight on 2nd/3rd August 1996 the Appellant escaped from Korovou prison. On 5th August 1996 he returned to the prison and surrendered himself. On 9th September 1996 he pleaded guilty to charge of escaping from lawful custody. A sentence of 9 months imprisonment was imposed to be served consecutively to the Appellant's sentence of 4 years imprisonment imposed on 19th September 1995. The particular reasons given by the learned Magistrate were the increase in this particular type of offending and the need to impose a deterrent sentence. With normal remission this sentence of 9 months extends the Appellant's release date to the 19th March 1999 and the date on which he becomes eligible for extra mural work to the 20th March 1998.

This charge under section 138 of the Penal Code is a misdemeanour carrying a maximum sentence of 2 years imprisonment.

In the case of Viliame Naituku v The State (Criminal Appeal No. 3 of 1996) I had occasion to consider sentences imposed or confirmed in this Court for this particular charge. In a decision delivered on 23rd February 1996, I reviewed four specific cases and said:

"It therefore appears that the sentences that have been fixed or approved in this Court range from 1 month to 9 months imprisonment depending upon the circumstances of the case".

I then went on and said:

"The prevalence of this offending and the concern it causes in the community warrants some scrutiny of this level of sentencing. Furthermore, the sentence must vary depending on the facts of particular cases. A range of up to 6 months imprisonment could be considered as a starting point for a first offender but any aggravating or mitigating circumstances could warrant heavier or lesser sentences".

I agree with the learned Chief Magistrate who said in this case, that the prevalence of this offence in recent times calls for deterrent sentences. The community is alarmed by prison escapes and considerable demands are made upon police and community resources. Those who escape can expect a consecutive prison sentence as a punishment and to deter them and other inmates from escaping.

However, each case must be separately considered on its own facts and circumstances. A sentence must still be imposed that is appropriate for the particular escape by the particular offender. Each case will have its own degree of seriousness and level of culpability for the offender.

Compared with other cases the escaping offence by this Appellant has a relatively low level of seriousness. This was a completely peaceful escape. No violence whatever was involved. Indeed it was not known until sometime after the event that the Appellant had in fact left the prison. No other offending occurred in the course of the escape or during the period that the Appellant was at large. After 2 days he voluntarily returned to the prison and surrendered himself.

There are some further mitigating circumstances. The Appellant pleaded guilty at the first opportunity. More particularly, there was a special reason for this escape. The Appellant had confirmed that his wife had left home and was living another man. He did not know where his children were and his mother had been unable to locate them. I accept that his reason for escaping was to resolve a genuine and important domestic matter that he could not achieve while in custody. Upon escaping, that is exactly what he did. He saw his wife and tried to convince her to leave the other man and return home to look after the children. She refused. She told him where the children were. He then collected the children and took them to his mother. Having achieved as much as he could to resolve the domestic problem he then returned to the prison and surrendered himself.

In his sentencing remarks the learned Chief Magistrate referred to "The nature of the offence and the seriousness of the offence and the need to impose a deterrent sentence". However, in the circumstances that I have outlined this is not a serious case of escaping. There are mitigating circumstances and in this particular case a deterrent sentence is not called for in respect of this particular offence and offender. In saying this I do not overlook the fact that this Appellant cannot be regarded as a first offender for this type of offending. When he was last in prison he was convicted on several occasions on charges of escaping. On this further sentence of imprisonment he has again escaped. He would have been aware of the consequences of his conduct. However, those matters are balanced by the facts that the previous convictions for escaping were 18 and more years ago and were committed when the Appellant was still a teenager. The escape on this occasion is of a different nature and for a different purpose.

In all the circumstances the sentence of 9 months imprisonment is manifestly excessive for this offence by this particular offender and should be reduced. Such an extension of the Appellant's release date and eligibility for extramural work is harsh in the circumstances that the Appellant has eloquently outlined to me. This is an exceptional case where the Court can take a more merciful approach.

Nevertheless, persons who escape from prison can expect a consecutive sentence of imprisonment. Very special and compelling reasons would be needed to order otherwise. There is no measure of punishment in a sentence of imprisonment that will be served fully concurrently with the term that the prisoner is currently serving.

In view of the matters I have outlined, the sentence in this case will be reduced to a period of 2 months imprisonment. That is a relatively lenient sentence but I consider that in this case there are exceptional circumstances for doing so.

Accordingly, the appeal is allowed the sentence of 9 months imprisonment imposed in the Magistrates' Court on the 9th September 1996 is quashed. A sentence of 2 months imprisonment is substituted therefore, to be served consecutive to his present term of 4 years imprisonment imposed on the 19th September 1995.

Justice D.B. Pain