Koya v The State [1999] FJHC 89; Haa0048d.99b (23 August 1999)

Fiji Islands - Iqbal Koya v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0048 OF 1999

BETW/p>:

IQBAL KOYA
s/o Moidin Koya
Appellant

AND:

THE
Respondent

Mr. A. Kohli for the Appellant
Ms. A. Driu for the Respondentndent

REASONS FOR DECISION

These are the Court's reason for orally allowing on 19th July 1999, an appeal against a sentence of two (2) years imprisonment imposed on the appellant upon his conviction for an offence of Indecently Annoying Female: Contrary to Section 154(4) of the Penal Code in the Labasa Magistrate Court.

At the outset the Particulars of Offence provided in the charge are wholly inadequate. It completely failed to set out the relevant 'mens rea' of the offence charged nor does it indicate in what manner or 'actus reus' is alleged to have been committed by the appellant albeit that the facts outlined by the prosecutor appears to include words uttered by him as well as the exposing of his person to the complainant.

Secondly, the trial magistrate's sentencing remarks which comprises half of the four (4) pages typed record no-where mentions as a mitigating factor the appellant's 'guilty' plea or the fact that for sentencing purposes he was treating the appellant as a 'first offender' as he should have done.

Furthermore whilst the prevalence of an offence is a factor calling for deterrence, the so-called lasting 'psychological effects' on the complainant in cases of Insulting the Modesty of a Female cannot be so easily presumed or judicially noticed in the absence of some admissible evidence as appears to have occurred in this case.

Finally and most seriously, the trial magistrate's undue concern for the need for 'condign punishment' led him quite erroneously, to impose a sentence which was twice the maximum sentence provided by the Legislature for the offence with which the appellant was charged. In short the sentence imposed by the trial magistrate was not only unduly harsh but also an unlawful one.

For the foregoing reasons, and in the light of State Counsel's concession that a sentence of nine (9) months imprisonment would have been the appropriate sentence in all the circumstances, the appeal was allowed and the appellant, who had already served five (5) months imprisonment, was ordered to be immediately released.

D.V. Fatiaki
JUDGE

At Labasa,
23rd August, 1999.

Haa0048d.99b