Seniloli v The State [1999] FJHC 65; Haa0030j.1999b (19 July 1999)

Fiji Islands - Seniloli v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0030 OF 1999

BETWEEN:

JOSEFA WAINIU SENILOLI
Appellant

AND:

THE STATE

Appellant ison
Mbr> Ms. A. Driu for the Respondent

JUDGMENT

This is an appeal against a cumulative sentence of 18 months imprisonment imposed on the appellant in the Magistrate's Court, Savusavu after he had pleaded 'guilty' and been convicted on four (4) counts of offences that occurred during the course of a drunken brawl at Somosomo, Taveuni on the early afternoon of 6th March 1999.

This latter fact plainly justifies the concurrent sentences imposed by the learned trial magistrate and no complaint can be made on that score. Nevertheless, the appellant complains that the total sentence is harsh and excessive given that he is a young (18 year old DOB: 7.10.81) first offender who had pleaded guilty to all counts. He professes to have learnt a salutary lesson from his experience of prison life and he asks the court for leniency.

State Counsel at the hearing of the appeal did not seek to support the sentences imposed and offered that the case might just as equally and justly have been dealt with by way of a suspended sentence of imprisonment. I entirely agree and propose to follow that course in this appeal.

Before doing so however, and since the appellant was unrepresented in the Magistrate's Court, this Court saw fit to examine the propriety of the appellant's convictions on each of the charges laid against him and to which he had pleaded guilty.

As to Count 1: Larceny it is clear from the prosecution facts outlined that the appellant, in full view of the owner and despite her protestations, had taken the axe from where it was placed outside the owner's house. Is that larceny ? I doubt it when one considers that an intention 'to permanently deprive the owner' of the article is a vital ingredient of the offence. Given the outlined facts the contrary inference is equally plausible i.e. that the appellant whose identity was plainly known, did not intend to permanently deprive the owner of the axe.

As to Count 2: Carrying an Offensive Weapon the Particulars of the charge clearly suggests that an axe per se is an 'offensive weapon'. Section 96(3) of the Penal Code defines an 'offensive weapon' as being 'any article made or adapted for use for causing injury to the person or intended by the person having it with him for such use by him'.

In respect of an identically-worded definition in the Prevention of Crime Act 1953 (U.K.) Geoffrey Lane L.J. said in R. v. Williamson (1978) 67 Cr. App. R. 35 at p. 38:

'(the definition) provides three categories of weapons. The first category is the weapon which is made for causing injury to the person. The second type of weapon is one not made for the purpose but adapted for it, such as, ... a potato with a razor blade inserted into it. The third type of weapon is one neither made or adapted but is one which is intended by the person having it with him for the purpose of causing injury to someone. That sort of thing could be any object that one can think of.'
(my underlining)

Plainly an axe is not an article specially made for use for causing injury to a person, on the contrary, it is plainly made or adapted for chopping wood and, given the largely rural/agrarian character of Taveuni life, the innocent carriage of an axe in public cannot and does not amount to an offence without more.

Further more strictly speaking, it is nowhere disclosed in the facts outlined on Count 2 that the appellant was seen either brandishing or threatening anyone with the axe. Indeed, at the hearing of the appeal, the appellant claimed he was carrying it in self-defence. I accept however that this lacuna is somewhat mitigated by the Particulars in Counts 3 & 4 but the point is taken mainly to highlight the importance of understanding the nature and meaning of an 'offensive weapon'.

As to Counts 3 & 4 the Particulars allege that the appellant 'with intent to cause alarm threatened (the two named police officers) with injury to his person by using an axe'. That is, on the facts, a serious matter and undoubtedly the appellant was quite properly convicted of Criminal Intimidation.

The sentence however for a simple offence of Criminal Intimidation is a maximum of 2 years imprisonment it being a misdemeanour (See: Section 47 of the Penal Code) unless the 'threat be to cause death or grievous harm' then the maximum sentence 'may extend to 7 years or more'.

In this case there is a material difference between the Particulars charged and the alleged threat outlined in the facts and, in the absence of any amendment, the appellant must be given the benefit of the doubt and the less serious threat disclosed in the Particulars must be taken to be what he admitted to and was convicted of i.e. to injure and not 'to kill or cause grievous harm'.

In the circumstances a sentence of 18 months imprisonment imposed on the appellant which is three quarters of the maximum allowable, must be considered unduly severe.

The appeal is accordingly allowed and the sentences are accordingly altered as follows:

On Count 1: 3 months imprisonment;

On Count 2: 6 months imprisonment; and

On Count 3: 12 months imprisonment.

All sentences are ordered to be served concurrently making a total of 12 months imprisonment.

The appellant has already served five (5) months imprisonment which, with remission, effectively leaves an unexpired portion of 3 months to serve on the adjusted sentence.

However taking into account the time already served and the fact that the appellant is a 'young first offender' and as earlier indicated, the appellant is ordered immediately released on a sentence of 9 months imprisonment suspended for 12 months from the date hereof.

The appellant is warned that if he should reoffend within the next twelve (12) months and be convicted of an imprisonable offence then he may be required, in addition to any other sentence imposed for his re-offending, to serve the 9 months sentence of imprisonment imposed in this appeal.

(D.V. Fatiaki)
JUDGE

At Labasa,
19th July, 1999.

Haa0030j.99b