Eremasi v The State [1998] FJHC 11; Haa0056j.97b (26 January 1998)

Fiji Islands - Eremasi v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Labasa

Appellate Jurisdiction

CRIMINAL APPEAL NO. 0056 OF 1997

Between:

JONE EREMASI
Appellant

and:

THE STATE
Respondent

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Mr. H. Robinson for the Appellant
Ms. A. Driu for the Respondent

JUDGMENT

On the 7th August 1997 the appellant was convicted by the Magistrate Court, Labasa after he pleaded 'guilty' to a charge of Arson. Upon his conviction the learned trial magistrate sentenced the appellant to 12 months imprisonment and activated in full, a 'suspended sent of f 6 months imprisonment making a total sentence of (12 + 6) = 18 months imprisonment.

The appellant now appeals against both his conviction and sentence on the following three (3) grounds:

"1. That the learned trial magistrate erred in law and in fact in convicting the appellant;

2. That the learned trial magistrate failed to take into account mitigating factors before passing sentence;

3. That the sentence was harsh in the circumstances."

Mr. Robinson for the appellant first argued that the appellant's plea of guilty was 'equivocal' insofar as the facts outlined by the prosecutor did not actually identify the appellant as having done anything in the way of setting fire to the complainant's house.

Notwithstanding the provisions of Section 309 of the CPC which precludes an appeal against a conviction based upon a guilty plea, I am more than satisfied on a careful consideration of the 'summary of facts' recorded by the learned trial magistrate, that there is not the slightest merit in this ground of appeal.

The court record clearly describes in some detail how the appellant and a co-accused had gone to the complainant's house armed with 'a gallon of benzine', 2 empty bottles and towelling material which was later soaked in the benzine and wrapped around two (2) stones. The towelling was then ignited and thrown against the wall of the complainant's house causing it to catch fire. More particularly the trial magistrate recorded (at p.9):

"Each threw one stone at the house. The bottles too were thrown by both - one each."

Quite plainly, the appellant although not the leader, was a willing and active participant in the commission of the crime and was therefore properly convicted on his 'guilty' plea and admission of the facts outlined. The appeal against conviction is accordingly dismissed.

As for grounds (2) & (3) relating to sentence, the learned trial magistrate in his clear and exemplary sentencing remarks, firstly, noted the correct approach to the sentencing of young offenders; he then dealt with the appellant's record of previous convictions noting quite properly that the court's past 'leniency extended to (the appellant) has had negligible, if any effect on him'.

Thereafter the trial magistrate correctly noted the seriousness of the offence which was committed at a time (3.00 a.m.) which "... could have brought about tragic results". He then sets out the 'mitigating factors' that he considered including the appellant's plea of 'guilty'; his age (18 years 11 months); and the probability that the appellant 'may have been misled by an older person' into committing the offence.

Finally in the exercise of his sentencing discretion and in balancing the interests of the offender and the need to deter the commission of similar offences, the learned trial magistrate was reluctantly driven to pass a lenient albeit immediate custodial sentence of 12 months imprisonment. This sentence cannot be faulted and is accordingly upheld.

As for the activation of the 'suspended sentence', the learned trial magistrate quite properly asked the appellant to show cause why it should not be activated and no justifiable cause having been shown, the sentence was activated in full and ordered to run consecutively.

It is noteworthy that the present offence was committed barely two (2) months after the 'suspended sentence' was imposed and accordingly the learned trial magistrate was entirely justified in activating the sentence in full.

However in activating the 'suspended sentence' the learned trial magistrate does not appear to have fully considered his powers under Section 30(2) of the Penal Code (Cap. 17), in particular, to order that the activated sentence 'take effect immediately' i.e. be served concurrently.

Accordingly, bearing in mind that this was the appellant's first time in prison and bearing in mind that the prior offence was one of Throwing Objects which is identical to the 'actus reus' of the Arson offence, I am able to show some additional leniency to the appellant.

I therefore order that the activated six (6) months sentence of imprisonment be served concurrently with the wholly appropriate sentence of twelve (12) months imprisonment imposed for the Arson offence. The total sentence the appellant must now serve is 12 months imprisonment with effect from the 7th of August 1997.

Subject to the above adjustment the appeal is dismissed.

D.V. Fatiaki
JUDGE

At Labasa,
26th January, 1998.

Haa0056j.97b