Kania v The State [2002] FJHC 146; HAA0063.2002S (16 August 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA0063 OF 2002
{ Suva Magistrate’s Court Crim. Case No.: 1051 of 2002 }

BETWEEN:

JOSUA KANIA
APPELLANT

AND:

THE STATE
RESPONDENT

Appellant - In Person
Respondent - Mr. P Bulamainaivalu

Date of Hearing - 9th August 2002
Date of Judgment - 16th August 2002

JUDGMENT

FACTS:

On 10^th May 2002 the appellant was on his own plea of guilty convicted for the offence of BEING FOUND BY NIGHT IN POSSESSION OF HOUSEBREAKING IMPLEMENTS Contrary to Section 303(b) of the Penal Code Cap 17. He was sentenced to 18 months imprisonment.

The appellant was on 8^th May 2002 at midnight seen by police patrol in Victoria Parade, Suva. He was carrying a bag. The police searched his bag. The appellant ran but was chased and arrested. A pinch bar, a pair of hand gloves and a kitchen knife were found by the police from inside the bag.

SENTENCE:

The appellant is appealing against the severity of sentence. He says he has found work now and parents are old.

The State submitted that the sentence was proper in light of appellant’s nineteen previous convictions and the fact that the appellant was caught at midnight. The State relied on the case of Saula Vunivesi & Abbas Koya vs. The State – Criminal appeal HAA0144 of 1998, 145 of 1999 and 146 of 1999 where a sentence of eighteen months imprisonment was upheld for same offence.

The learned Magistrate in his sentencing remark said "taking the discount and the compulsory remission into account, I order that he be sentenced to 18 months imprisonment".

ISSUE OF REMISSION:

The Prisons Act Cap 86 deals with remission of sentence of imprisonment. By virtue of Section 63 of the said Act those sentenced to more than one month imprisonment are entitled to remission equal to one third of their term of sentence. However, this remission has to be earned "by satisfactory industry and good conduct" under the terms of the section. Remission is not automatic. Remission is granted by the Controller or supervisor of a particular prison after consideration of factors, which are quite different from those considered by the court at the time of sentencing. The role of the Controller or supervisor is an administrative one; the role of the court is a judicial one. Remission is a post sentence process.

The basic principle of sentencing is that an offender should be sentenced to a term of imprisonment commensurate with the gravity of his or her offending and this should not be exceeded simply because the court is of the opinion that an earlier release is probable because of the granting of remission.

The High Court of Australia in Hoare v. R. [1989] HCA 33; 1989 167 CLR 348 at 354 observed that the fact that a sentence should not be increased in order to take account of the existence of possible remission is "one rule about which there is almost universal agreement in often contentious field of sentencing law". It pointed to three reasons behind this general rule –

(a) there is no guarantee that a particular prisoner will in fact obtain the maximum remission.

(b) A basic principle of sentencing law is that a sentence of imprisonment should never exceed that which can be justified as appropriate or proportionate to the gravity of crime considered in light of objective circumstances.

(c) To increase what would otherwise be an appropriate sentence is to negate in advance the real benefit to the prisoner of remission for good behaviour thereby undermining the policy behind the remission.

Hence a trial court should not treat the likelihood of remission as a ground for increasing what would otherwise be an appropriate sentence. The eighteen-month prison sentence may not be improper in the circumstances of this case but given the unfortunate remark made by the learned Magistrate, I am constrained to reduce the sentence by six months. The appeal therefore succeeds. The appellant is sentenced to imprisonment for a term of one year with effect from 10^th May 2002.

{ Jiten Singh }
JUDGE

At Suva
16^th August 2002