State v Naqa [2003] FJHC 122; HAA0023J.2003S (18 July 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0023 OF 2003S

Between:

THE STATE
Appellant

And:

SENITIKI NAQA
SERUPEPELI TUINAKAUVADRA
INOKE NAIROIROI
PENI BUKA
SAILOSI LATIKAU
VILIAME MOLIKULA
VILIAME NAWAQALIQALI
Respondents

Hearing: 11th July 2003
Judgment: 18th July 2003

Counsel: Mr. S. Leweniqila for State
Mr. S. Valenitabua for all Respondents

JUDGMENT

The Respondents were convicted and sentenced on the following charges:

FIRST COUNT

Statement of Offence

FORCIBLE ENTRY: Contrary to Section 99 of the Penal Code, Cap. 17.

Particulars of Offence

SENITIKI NAQA, SERUPEPELI TUINAKAUVADRA, INOKE NAIROIROI and PENI BUKA on the 4th day of July, 2000 at Monasavu, Tavua in the Western Division, in order to take possession thereof, made a forcible entry in a violent manner upon the Monasavu Dam of the Fiji electricity Authority, covering the whole Monasavu Dam area which was in occupation of the said Fiji Electricity Authority.

SECOND COUNT

Statement of Offence

WRONGFUL CONFINEMENT: Contrary to Section 256 of the Penal Code, Cap. 17.

Particulars of Offence

SENITIKI NAQA, SERUPEPELI TUINAKAUVADRA, INOKE NAIROROI, PENI BUKA and SAILOSI LATIKAU, between the 4th day of July 2000 and 31st day of July 2000, at Monasavu, Tavua in the Western Division, wrongfully confined army officers namely Warrant Officer Seuta, Corporal Leweni, Corporal Yacarogovinaka, Corporal Panda Ram, Private Tanuku, Private Bainikoro, Private J. Dovi, Private Muduvakarua, Private Tavaga, Private Saga, private Sausauwalu, Private Dreuvakabalawa, Private Raoma, Private Raicebe, Private Saukitoga, Private Dan, Private Grace, Private Lalaqila, Lt. Tanuku and Sergeant Tawakevou.

THIRD COUNT

Statement of Offence

UNLAWFUL POSSESSION OF ARMS AND AMMUNITION: Contrary to Section 4(1) and 2(a)(ii) of the Arms and Ammunition Act, Cap. 188.

Particulars of Offence

SENITIKI NAQA, SERUPEPELI TUINAKAUVADRA, INOKE NAIROROI, PENI BUKA and SAILOSI LATIKAU between the 4th day of July 2000, and the 31st day of July 2000, at Monasavu, Tavua in the Western Division, were found in possession of M16 and K2 rifles and assorted ammunition without licence authorising the said Senitiki Naqa, Serupepeli Tuinakauvadra, Inoke Nairoroi and Sailosi Latikau to possess the said arms and ammunition.

FOURTH COUNT

Statement of Offence

UNLAWFUL ASSEMBLY: Contrary to Sections 86 and 87 of the Penal Code, Cap. 17.

Particulars of Offence

SENITIKI NAQA, SERUPEPELI TUINAKAUVADRA, INOKE NAIROROI, PENI BUKA, SAILOSI LATIKAU, VILIAME MOLIKULA and VILIAME NAWAQALIQALI between the 4th day of July 2000 and the 31st day of July 2000, at Monasavu, Tavua in the Western Division, assembled with intent to commit an offence or being assembled to with intent to carry out some common purpose, conducted themselves in such a manner as to cause persons in the neighbourhood reasonably to fear that the persons so assembled will commit the breach of the peace or will by such assembly needlessly and without any reasonably occasion provoke other person to commit a breach of the peace.

FIFTH COUNT

Statement of Offence

DAMAGING PROPERTY: Contrary to Section 324 of the Penal Code, Cap. 17.

Particulars of Offence

SENITIKI NAQA, SERUPEPELI TUINAKAUVADRA and INOKE NAIROROI between the 1st day of July 2000 and the 31st day of July 2000 at Monasavu, Tavua in the Western Division, wilfully and unlawfully damaged the Gate Shaft of the Monasavu Hydro Dam valued at $10,000.00, the property of the Fiji Electricity Authority.

SIXTH COUNT

Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to Section 292 of the Penal Code, Cap. 17.

Particulars of Offence

SENITIKI NAQA, SERUPEPELI TUINAKAUVADRA and INOKE NAIROROI between the 1st day of July 2000 and the 31st day of July 2000 at Monasavu, Tavua in the Western Division, unlawfully and without colour of right, but not so as to be guilty of stealing, drove a van registration number CQ 524 the property of Telecom Fiji Limited.

The matter was first called before the Tavua Magistrates’ Court on the 24th of August 2000. All accused persons pleaded not guilty. They were granted bail and the matter was adjourned to 4th December 2000 for mention. Inexplicably, the matter was called on that date, in the Suva Magistrates’ Court before Mr. S. Temo. There is no explanation in the court file for the transfer, and no suggestion that the Tavua Magistrate had heard any application for transfer, or that the Chief Magistrate had been moved to transfer the case under section 70 of the Criminal Procedure Code.

Nevertheless, Mr. Temo, the Resident Magistrate ordered transfer “pursuant to s.70 CPC” although the power to transfer under that section vests only in the Chief Magistrate after he has made a decision that one of the conditions precedent to the transfer exists. Those conditions are that a fair and impartial inquiry cannot be had in any magistrates’ court, or that some question of unusual difficulty is likely to arise, or that a locus in quo will be required, or that a transfer would be convenient for the parties, or that such an order is expedient for the ends of justice.

In this case the order for transfer was made with no reasons given. However neither prosecution nor defence appears to have objected to the transfer and no issue was taken with it at the case stated hearing.

Thereafter, after prosecution evidence was disclosed to the defence the matter was set for hearing to 3rd May 2001. On that date the prosecution said they had not served witness summons and the case was adjourned to 5th September 2001 for mention. After several further adjournments, the 2nd, 6th and 7th accused changed their pleas on the 19th of June 2002. The 6th and 7th accused were each bound over to keep the peace for 12 months in the sum of $150 each. The 2nd accused was sentenced as follows:

Count 1 - 6 months imprisonment;

Count 2 – 6 months imprisonment;

Count 3 – 18 months imprisonment;

Count 4 – 6 months imprisonment;

Count 5 – 12 months imprisonment;

Count 6 – 3 months imprisonment.

The learned Magistrate then said:

“All the above sentences are concurrent to each other i.e. total of 18 months in prison. Given what Defence counsel said that the accused was arrested and assaulted by the Security Forces at the time of arrest, and as a result, suffered injuries, I will suspend the total 18 months prison sentence for 3 years.”

The sentence was delivered on 1st October 2002. Thereafter on the 2nd of October 2002, all the remaining accused persons changed their pleas and the learned Magistrate stated as follows:

“I note that the written plea in mitigation is somewhat similar to that advanced, on behalf of Accused No. 2. I also note the fact that all the accused are 1st offenders. I also take note of their guilty pleas which has saved the Court’s time. The accused as a result of their wrong doing, appeared to have suffered assaults etc. by the Security Forces at the time of their arrest and detention. In Accused No. 1’s case he appeared to have suffered serious injuries which affect him as of today. I repeat my sentencing comments that I made when sentencing Accused No. 2 yesterday. I will sentence the accused in the following way:

Count No. 1 – each accused gets 6 months prison.

Count No. 2 – each accused gets 6 months prison.

Count No. 3 – each accused gets 18 months prison.

Count No. 4 – each accused gets 6 months prison.

Count No. 5 – Accused 1 and 3 get 12 months prison each.

Count No. 6 – Accused No. 1 and 3 get 12 months prison each.

The above sentences are concurrent to each other i.e. a total sentence of 18 months each. Since the accused have suffered injuries at the time of arrest and detention, the above sentences are suspended for 3 years.”

The Director of Public Prosecutions then applied to have a case stated in respect of these sentences. The questions asked are:

“(i) Does a charge and subsequent guilty plea of unlawful possession of firearms contrary to section 4(1) 2(a)(ii) of Arms and Ammunition Act, Cap 188 fall within the ambit of section 29(3)(a) of the Penal Code, Cap 17?

(ii) What is the nexus between section 29(3) of the penal Code, cap 17 and section 29(1) of the Penal Code?

(iii) Did the Magistrate have the legal basis to suspend the sentences of Senitiki Naqa, Serupepeli Tuinakauvadra, Inoke Nairoroi, Peni Buka and Sailosi Latikau?”

The facts

The summary of facts submitted to the court was sparse and went only a little further than the particulars of offence on all counts. On the 6th of July 2000 at about 1.40am, the accused with others entered the Monasavu Dam by force. The Dam was at that time being guarded by 18 soldiers from the Fiji Military Forces. They then served yaqona to these soldiers. They had first added drugs to the yaqona which incapacitated them. They then seized their weapons and locked them up in their barracks, where they remained until the 31st of July 2000. The accused were then seen between the 4th and 31st of July in possession of the rifles and ammunition which they had taken from the soldiers. Between those dates, the accused with others unlawfully assembled at the Monasavu Dam in order to maintain the unlawful confinement of the 18 soldiers. The soldiers were in fear because they could see that the accused were inexperienced in the use of firearms. On the 6th of July the 1st, 2nd and 3rd accused then shut down the gate shaft of the Monasavu Dam, damaging it. The gate shaft was valued at $10,000. Finally, the 1st, 2nd and 3rd accused with others forcefully took over a Telecom vehicle from a telecommunications technician, who had been sent to Monasavu to check the transmitting station. They and others then used the vehicle for their own purposes until the 31st of July. The vehicle was later recovered. These facts were admitted by all the accused.

In mitigation, counsel said that the accused committed these offences because they were frustrated about the failure of the authorities to pay the Monasavu landowners compensation for the use of their land for the Monasavu Hydroelectric Scheme. He further said that the accused had been arrested by members of the Fiji Military Forces, that they had been assaulted over several days and kept in custody for nine days. He said that the accused had suffered physically, psychologically and financially as a result of this case.

The issues

There are several issues raised by the case stated application. The first is the question of the scope and meaning of section 29(3) of the Penal Code. The second is whether a sentence in relation to the possession of firearms can be suspended after the decision of Fatiaki J in DPP –v- Saviriano Radovu Crim. App. No. HAA0006 of 1996. The third is, if the sentence can be suspended in law, whether it ought to have been suspended in the circumstances of this case.

Section 29 of the Penal Code

Section 29 of the Penal Code creates and regulates the suspended sentence. It provides as follows:

“29 – (1) A court which passes a sentence of imprisonment for a term of not more than two years for an offence, may order that the sentence shall not take effect unless, during the period specified in the order, being not less than one year nor more than three years from the date of the order, the offender commits in Fiji another offence punishable with imprisonment and thereafter a court having power to do so orders under the provisions of section 30 that the original sentence shall take effect; and in this and in sections 30, 31 and 32 “operational period” in relation to a suspended sentence means the period so specified in the order.

(2) A court which passes a suspended sentence on any person for an offence shall not make a probation order in his case in respect of another offence of which he is convicted by or before the court or for which he is dealt with by the court.

(3) A court which passes a sentence of imprisonment for a term of not more than six months in respect of one offence shall not make an order under the provisions of subsection (1) where –

(a) the act or any of the acts constituting that offence consisted of an assault on or threat of violence to another person or having or possessing a firearm, an imitation firearm, an explosive or an offensive weapon or of indecent conduct with or towards a person under the age of sixteen years;

(b) on the occasion on which a sentence is passed for that offence, the court passes or proposes to pass a sentence of immediate imprisonment on the offender for another offence which the court is not required to suspend.” (my emphasis)

Section 29(4) deals with the duty of the court to explain the suspended sentence to the accused and section 29(5) deals with the effects of a suspended sentence. They are not relevant to this application.

The suspended sentence was first introduced to the Colony in 1969 by Ordinance No. 12 of 1969. It was taken from the English Criminal Justice Act 1967 which introduced the suspended sentence in England and Wales. D.A. Thomas (Principles of Sentencing) summed up the new provision thus:

“The suspended sentence was introduced by section 39 of the Criminal Justice Act 1967. This section empowers a court which passes a sentence for a term of not more than two years to order that the sentence shall not take effect unless during a specified period of between one year and three years (the ‘operational period’) the offender commits in Great Britain another offence punishable with imprisonment and a court orders the original sentence to take effect. The making of an order suspending the sentence is at the discretion of the court except where the term of the sentence is not more than six months in respect of one offence. Where the sentence is for not more than six months, the court must suspend the sentence unless one of five conditions is satisfied. These are (i) that the act or any of the acts constituting that offence consisted of an assault or threat of violence to another person, or of having or possessing a firearm, an explosive or an offensive weapon, or of indecent conduct with or towards a person under sixteen; (ii) that a probation order or conditional discharge was originally made in respect of the offence ...; (iii) that the court passes on the same occasion on the offender for another offence a sentence which will take place immediately; (iv) that the offender is serving ... a period of imprisonment ...; (v) that the offender has at any time before the commission of the offence been sentenced to ... imprisonment ... or been part of a suspended sentence. In these cases the court may suspend the sentence but is not bound to do so.” (my emphasis)

Section 39(3) of the English Act, from which the Fiji section 29(3) was taken, therefore provided that sentences of imprisonment of less than 6 months must be suspended unless they fell into one of the exceptions.

The purpose of the provisions of section 39 was well-known. The suspended sentence was intended to reduce the British prison population. The Advisory Council on the Penal System (“Sentences of Imprisonment: a review of Maximum Penalties” HMSO 1978) said that the suspended sentence was introduced into English law as “part of a wider search for ways of reducing the numbers in prison”, and because of the “strain which our prison population is suffering.” The Council in 1978 decided however that this penological aim had never been achieved and that the suspended sentence had in fact led to an increase in the prison population because a large number of them had been re-activated on re-offending. Further sentencers were using the suspended sentence far too frequently when in the past they might have considered other non-custodial sentences such as probation or fines.

These findings led to concern about the over-use of the suspended sentence (AE Bottoms “The Advisory Council and the Suspended Sentence” (1979) Crim. L.R. 437) and to the Powers of Criminal Courts (Sentencing) Act 2000 which provides:

“118(4) A court shall not deal with an offender by means of a suspended sentence unless it is of the opinion –

(a) that the case is one in which a sentence of imprisonment would have been appropriate even without the power to suspend the sentence; and

(b) that the exercise of that power can be justified by the exceptional circumstances of the case.”

Fiji’s section 29(3) therefore was derived from the English S.39(3) of the Criminal Justice Act 1967. However, there is one significant deviation. Section 39(3) provides that where the sentence is not longer than 6 months, the court shall suspend the sentence unless it falls into one of the five conditions. This meant that the court had to suspend sentences of less than 6 months, but where the offence fell into one of the specified categories, it retained a discretion to suspend. In the light of the penalogical purpose of the suspended sentence, section 39(3) made good sense. Further, the wording of section 39(3) was so clear that the courts had no doubt about the scope of it. The few cases which had occasion to deal with the sub-section accepted the mandatory nature of the provision, deciding only that the provisions did not apply to contempt of court (Morris & Others –v- Crown Office (1970) 2 QB 114 (per Denning M.R.) or when consecutive terms of imprisonment exceeded 6 months. (R –v- Flanders (1968) 3 ALL ER 534).

However Fiji’s Penal Code instead used the words “shall not.” The plain meaning of the sub-section in the Penal Code appears to be that the court cannot suspend a 6 month or less term for offences within the exempted categories, but can suspend a longer sentence for the same categories of offending. The different meaning appears to serve no penalogical purpose at all.

Fatiaki J considered the provision in DPP v. Saviriano Radovu (supra). That was a case of the indecent assault of a child leading to the imposition of a suspended sentence by the Magistrates’ Court. On appeal by the DPP, his Lordship considered the meaning of section 29(3) of the Penal Code. At page 7 of his judgment he said:

“In my considered opinion the legislature could not have intended the ‘exclusions’ set out in subsection (3) paragraphs (a) to (c) to be so easily ignored or circumvented merely by a court imposing a sentence in excess of the subsection’s maximum i.e. 6 months imprisonment and at the same time retaining its discretion to suspend, by ensuring that the sentence imposed is within the maximum envisaged by subsection (1) regardless of the offence committed and however little above 6 months the sentence imposed might be.

In my view paragraphs (a) to (c) of subsection 3 of section 29 provide an over-riding statutory fetter or limitation within which a court is empowered to exercise its discretion to suspend a sentence of imprisonment under subsection (1).”

Further at page 8, he said:

“Finally I make the observation that section 39 of the Criminal Justice Act 1967 (UK) which for all intents is in identical terms to and the precedent for section 29 of our Penal code, quite clearly omits the “not” in line 2 of subsection 3 immediately before the words: “... make an order under the provisions of subsection (1) ......” The question that then arises is, did our legislature consciously and intentionally write in the “not” in subsection (3) so as to change the mandatory form of the UK subsection into our existing negative format? And if so, what was its intention in doing so?”

In order to answer the questions of this case stated application, this question, posed by Fatiaki J in 1996 needs to be addressed. The inclusion of the word “not” in the Fiji Penal Code changes dramatically the meaning of the subsection. The intention of the legislature in making such a change is not clear. Certainly the result of the change is to lead to a potentially absurd result.

State counsel invited me to peruse the Hansard reports of the debate in Parliament when section 29(3) was being considered. Counsel for the Respondent objected, saying that the words in section 29 were plain and simple and required no discussion of Parliament’s intent.

In Pepper –v- Hart [1992] UKHL 3; (1992) 3 WLR 1032 the question of the ability of the judiciary to refer to Hansard to assist in statutory interpretation was referred to the House of Lords by the Appellate Committee of the Court of Appeal. The House of Lords held that Hansard could be referred to, to assist in statutory interpretation where legislation was ambiguous, or obscure or led to a patent absurdity. Hansard containing statements by the Minister introducing the Bill was of particular relevance.

Fatiaki J in Saviriano Radovu (supra) called section 29(3) an anomaly which needed urgent re-drafting. I considered section 29(3) in the State –v- Manoj Kumar Crim. App. No. HAA0002 of 2003S and said that the reference to sentences of less than 6 months imprisonment was difficult to understand and that the sub-section was ambiguous and anomalous. In the circumstances a perusal of the Hansard reports when the Ordinance amending the Penal Code was debated is both helpful and necessary. Did Fiji’s Parliament intend to depart so dramatically from the English provisions on the suspended sentence?

The Penal Code (Amendment) Bill was moved by the then Attorney-General. On the 1st of May 1969 he said:

“Mr. Speaker, Sir, this particular Bill has a number of purposes. The principal purpose is to give more powers to the Courts than they have at present in relation to alternatives for imprisonment. It will be remembered that there was a Secretary of State’s Penal Committee which sat in Fiji at the end of 1966 and the beginning of 1967. I am glad to say that before that Committee sat a major portion of this Bill was drafted. But this Bill does in particular concentrate on many of the points they raised namely that there should be alternatives in relation to imprisonment so that imprisonment itself should be the last resort and punishment of the courts.”

In relation to Clause 4 of the Bill, which when passed became section 29(3) of the Penal Code, Hansard reads as follows:

“Mr. Speaker, Sir, I beg to move that Clause 4 of the Bill be amended as follows:

(a) by substituting the words “shall not” for the word “may” in the third line of the proposed subsection (3) of the proposed section 28A;

(b) by substituting the word “where” for the word “unless” in the fourth line of the said proposed subsection (3).

Mr. Speaker, Sir, contained in sub-clause (3) which appears at page 2 of the Bill there are certain limitations on making an order of suspended sentence and it starts:- “A court which passes a sentence of imprisonment for a term of not more than six months in respect of one offence may make an order under the provisions of subsection (1) of this section unless -” the amendment by substituting the words “shall not” for the word “may” seems to be worded better. It will then read, if amended:

“A court which passes a sentence of imprisonment for a term of not more than six months in respect of one offence shall not make an order under the provisions of subsection (1) of this section where -”

It tidies it up and seems to make it more intelligible.”

Rather surprisingly, given the less than intelligible effect of the proposed amendment, there was no dissension, nor further debate on Clause 4 of the Bill. However there was debate on subsection (2) of section 28A (now section 29(2)) which provides that a court shall not make a probation order at the same time as a suspended sentence order. There was some discussion about the grammatical effect of the proposed amendment. The Attorney-General then said:

“I can say, Sir, that I compared this with the British Act and all the clauses are identical.”

The Deputy Speaker then read out the corresponding section of the Criminal Justice Act 1967 (UK) and the exact wording of that section was adopted. The Bill was then passed.

This debate is illuminating for two reasons. The first is that it shows that the words “shall not” in section 29(3) were substituted for the original as an attempt to “tidy-up” the sub-section. The substitution was never intended to change the meaning of the provision. The second is that it was the intention of the legislature to simply incorporate into Fiji law, the provisions of section 39 of the Criminal Justice Act 1967 (UK). There was no intention to alter those provisions either in substance or in form, except to improve on the drafting. This is also evident from the words in section 29(3)(b) – “which the court is not required to suspend.” These words suggest that the subsection was intended to create a class of sentences (6 months and under) which had to be suspended. It is now apparent that Parliament would have done better if it had simply adopted the same words as the UK legislation.

If that was the intention of Parliament (and this is very clear from Hansard) then section 29(3) was intended to provide that all short sentences (6 months or less) must be suspended unless they fall into any of the exemptions in section 29(3)(a) in which case the sentences can be suspended but need not be. Of course this is quite different from the way the section reads, and the only sensible way to construe the subsection in the light of clear Parliamentary intention is to find (as Fatiaki J found in Radovu (supra) and as I found in Manoj Kumar (supra)) that the statute favours suspensions of short sentences for most cases, but provides that the exempted offences “must be considered prima facie unsuitable to be dealt with by way of a suspended sentence.” (Fatiaki J in Radovu (supra).)

Thus, where an accused person is found guilty of an offence of possessing a firearm or of any offence involving actual violence or the threat of violence, then he/she should not be given a suspended sentence. It follows that a conviction under Count 3 of the charge sheet cannot result in a suspended sentence. Further, the charge on count 1 of Forcible Entry, alleging as it does, “a forcible entry in a violent manner” also precludes the use of the suspended sentence.

Section 29(1) and 29(3) of the Penal Code

Under the Criminal Justice Act 1967 (UK) the nexus between these two sub-sections was self-evident. A sentence could only be suspended if the term is for less than 2 years and the operational period was less than 3 years (section 29(1)). However sentences of less than 6 months for all offences except for the categories in subsection (3)(a) had to be suspended. The purpose of the section was to ensure firstly that the courts could suspend any sentence if it was less than 2 years, and secondly to ensure that the courts must suspend short sentences (of 6 months or less) unless they were for the exempted categories of the offence. Section 39(1) created the sentence and provided a discretion in all cases. Section 39(3) created a mandatory suspension for short sentences (to eradicate the short sharp shock sentence for less serious offences) except for certain offences.

Fiji’s Parliament clearly intended the same result in Fiji but the result is that although it is not mandatory for the Fiji courts to suspend sentences of 6 months or less, they must not suspend sentences for offences in the exempted categories.

Thus the nexus between section 29(1) and (3) of the Penal Code is that section 29(1) provides generally for the suspended sentence, whilst section 29(3) provides for the circumstances in which the suspended sentence is not appropriate. The reference to 6 months in section 29(3) is taken from section 39(3) of the English Act and refers to the court’s duty to consider suspending sentences which are less than 6 months long.

The sentences in this case

It follows that the learned Magistrate erred in suspending the sentences on Counts 1 and 3. Section 29(3) of the Penal Code sends a clear legislative message to all courts that where a person is guilty of violent conduct, or having in his possession firearms or explosives, a suspended sentence is not appropriate.

The learned Magistrate said in his sentencing remarks:

“The facts of this case is very serious. It involved an unjustified attack on the Fiji Military Forces soldiers, and violation of the Fiji Electricity Authority Property rights. Fiji Military Forces weapons and ammunitions were also unlawfully possessed.

Count No. 1 carries a maximum of 2 years imprisonment. Count No. 2 carries a maximum of 1 year imprisonment. Count No. 3 carries a maximum of 5 years imprisonment. Count No. 4 carries a maximum of 1 year imprisonment. Count No. 5 carries a maximum of 2 years imprisonment and Count No. 6 carries a maximum of 6 months imprisonment.

In the above Counts, if the maximum prison sentences are imposed and made consecutive to each other, the accused could be spending a total of 10 years in prison.

Had the matter proceeded to trial, and the accused found guilty later, I was thinking, given the serious nature of the offences, of a total sentence of 5 years imprisonment. However Accused No. 2 had pleaded guilty to the counts and for that he is entitled to a 2 year discount – balance is 3 years. He is also a first offender and for his previous good record he is entitled to a 1 year discount – balance is 2 years. For the other matters advanced in mitigation I will give him a 6 month discount – balance is 18 months imprisonment.”

The difficulty with this approach to sentencing is that the learned Magistrate sentenced on all offences rolled up together in total. He did not sentence the accused on each count until after he had decided on the total term. The totality principle is to be addressed after the sentences on all counts have been decided. It is a “last post” consideration. The other difficulty is that there was no scaling for aggravating and mitigating factors, nor was there any consideration of the effect of these offences on the general public.

Count 1

The circumstances of the offending were very serious indeed, for the Fiji Electricity Authority, for the Fiji Military Forces, for the people of Monasavu who had to endure the hijacking of the Monasavu Dam at their doorstep, and for the people of Viti Levu who for almost all of July were at risk of losing electricity supply for their every day lives. Coinciding as it did, with the political crisis in Fiji post-May 2000 this was one of the worst types of offending one could find under section 99 of the Penal Code.

Section 99 provides:

“Any person who, in order to take possession thereof, enters on any lands or tenements in a violent manner, whether such violence consists in actual force applied to any other person or in threats or in breaking open any house or in collecting an unusual number of people, is guilty of the misdemeanour termed forcible entry.”

The maximum sentence is two years imprisonment. An appropriate starting point would be 18 months imprisonment. Mitigating factors were that there were pending grievances against the FEA which had remained unresolved, the considerable (and unnecessary) delay in the hearing of the case, the pleas of guilty (although not made at the earliest opportunity) and previous good character. For these factors, the sentence could have been reduced to 9 months imprisonment. Aggravating factors were the sensitivity and importance of the Monasavu dam to the people of Fiji and the seriousness of entering premises guarded by the Military Forces. A sentence of 18 months imprisonment would have been appropriate in this case on Count 1, for the 1st, 2nd, 3rd and 4th accused.

Count 2

Section 256 of the Penal Code provides:

“Whoever wrongfully confines any person is guilty of a misdemeanour, and is liable to imprisonment for one year or to a fine of four hundred dollars.”

This was a case of overcoming 18 members of the armed forces by the use of drugged yaqona. The confinement continued over a period of 3 weeks. Clearly a starting point of 9 months imprisonment would be appropriate. The pleas of guilty and good character are mitigating factors, but the fear in which the unfortunate victims lived for 3 weeks, their humiliation while they watched the accused parade in the area with firearms and the resulting uncertainty amongst the people of Fiji are aggravating factors which must result in a sentence close to the statutory maximum. A sentence of 11 months imprisonment would not be inappropriate.

Count 3

The Arms and Ammunitions Act Cap 188 provides that any person found in possession of arms or ammunitions without a licence, is liable to imprisonment for 5 years. If the arms are carried in a “prohibited area” the maximum sentence is 10 years. The facts do not disclose whether the Monasavu Dam was a prohibited area. The maximum sentence was therefore 5 years imprisonment.

This was also a serious offence. The arms and ammunition were held by the accused for a substantial period of time and were used to ensure control of the Monasavu Dam area. A starting point of 3 years imprisonment would be appropriate. After taking into account the pleas of guilty, good character and delay, the sentence could be reduced to 18 months imprisonment. After scaling up for the number of arms, the use to which they were put and the manner in which they were taken from the soldiers, I would arrive at 2 years imprisonment.

Count 4

Section 86 of the Penal Code defines an unlawful assembly as follows:

“Where three or more persons assemble with intent to commit an offence, or being assembled with intent to carry out some common purpose, conduct themselves in such a manner as to cause persons in the neighbourhood reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace, they are an unlawful assembly.”

The maximum sentence is imprisonment for one year. In the circumstances of this case, a starting point of 9 months imprisonment would be appropriate. After taking into account mitigating and aggravating factors, a sentence of 6 months imprisonment, as the Magistrate found, would be appropriate.

Count 5

The maximum sentence for damaging property is two years imprisonment. In this case the accused wilfully and unlawfully damaged part of the Monasavu Dam, causing damage to the value of $10,000 (in respect of which no accused offered to reimburse the FEA). The consequences to the power supply to consumers in Viti Levu is not known. They should have been included in the facts drawn up by the prosecutor.

However, a starting point of 18 months imprisonment would be entirely justified given the value of the Gate Shaft of the Dam. After adjusting for the guilty pleas, good character and delay and for the seriously aggravating circumstances of the case including the importance to Fiji of the Dam, a sentence of 12 months imprisonment would have been appropriate.

Count 6

The hijacking of vehicles from unsuspecting members of the public, and in this case, a member of Fiji’s essential services, clearly calls for a custodial sentence. With a starting point of 4 months imprisonment, and after taking into account the guilty pleas, good character, the recovery of the vehicle and the delay, I arrive at a sentence of 3 months imprisonment.

I have set out the sentencing process the learned Magistrate ought to have followed at some length above, because there seems to be a misunderstanding of the totality principle. The sentences he might have arrived at on each count are as follows:

Count 1 – 18 months imprisonment;

Count 2 – 11 months imprisonment;

Count 3 – 2 years imprisonment;

Count 4 – 6 months imprisonment;

Count 5 – 12 months imprisonment;

Count 6 – 3 months imprisonment.

If these sentences were to be served consecutively, they would clearly be excessive in total. As such they should be served concurrently. In total therefore all five accused persons would have had to serve a total of two years imprisonment. This total sentence is very similar to the 18 month term imposed by the learned Magistrate. Although the length of the sentences imposed is not the subject of this case stated application, I have set out the sentencing process as it ought to have been followed, on each count.

Suspension

The learned Magistrate decided to suspend the sentences because he found that the accused had been assaulted in custody by soldiers. As I have already found, suspension on Counts 1 and 3 were in contravention of section 29(3) of the Penal Code. However even if that were not so, the allegations made by defence counsel of military assault ought not to have been accepted by the court without further investigation. The State does not appear to have been asked if this allegation was disputed. It is very likely to have been disputed unless the soldiers concerned have been prosecuted for those assaults.

Further, even in the absence of section 29(3), this was not an appropriate case for suspension. As a general principle the suspended sentence is not appropriate for a series of offences. D.A. Thomas in “Current Developments in Sentencing” (1969) Crim. L.R. 237 said:

“The court has refused to order suspension of a sentence passed for what amounted to a series of offences rather than an isolated one; in cases where the offence exhibits a degree of careful premeditation, or where the offence amounts to a serious breach of trust. The court is also reluctant to order suspension where the length of the term of imprisonment already makes substantial allowance for the factors which are urged as a basis for suspension.”

In O’Keefe (1969) 1 ALL ER 426, the English Court of Appeal noted that there were many cases where suspended sentences were being given as a “soft option” when the court is not sure what to do. In that case, the court said that a suspended sentence should only be imposed when, by having eliminated all other alternatives, the court decides that the case is one for imprisonment. It said, at page 428:

“The court must go through the process of eliminating other possible courses such as absolute discharge, conditional discharge, probation order, fines and then say to itself: this is a case for imprisonment, and the final question, it being a case for imprisonment, is immediate imprisonment required, or can I give a suspended sentence?”

R.F. Sparks in his article “The Use of Suspended Sentences” (1971) Crim. L.R. 384, pointed out that the courts were not adopting this approach and that statistics in England showed that the suspended sentence was being imposed when a probation order or fine might have been more appropriate. As I have already said in this judgment, general disenchantment with the use of the suspended sentence in England led to legislative change in 2000. The suspended sentence can now only be imposed “in exceptional circumstances.”

In Fiji, concern has repeatedly been expressed by the courts about the over-use of the suspended sentence. Byrne J in Nand Kumar –v- The State Crim. App. No. HAA0115.2002L said –

“In line with other judges I have frequently expressed the view that suspended sentences generally are a snare and a delusion in that they tend to give a person convicted a false sense of security and leave him under the mistaken belief that he has not done any wrong because he has not been sent to prison.”

In 1991, Tuivaga C.J. issued a Circular Memorandum to all judicial officers saying that the suspended sentence, except in exceptional circumstances, should not be used in cases of violence, abduction, sexual offences, criminal damage to property, fraud of large sums of money, robbery, or alcohol-induced causing death by dangerous driving.

Grant C.J. said in DPP –v- Jolame Pita 20 FLR 5:

“Once a court has reached the decision that a sentence of imprisonment is warranted there must be special circumstances to justify a suspension, such as an offender of comparatively good character who is not considered suitable for, or in need of, probation, and who commits a relatively isolated offence of a moderately serious nature, but not involving violence. Or there may be other cogent reasons such as the extreme youth or age of the offender, or the circumstances of the offence.”

Helpful guidelines on the use of the suspended sentence can also be found in R –v- Peterson (1994) 2 NZLR 533.

In State –v- Ilikimi Naitini a.k.a. George Speight and Others Crim. Action No. HAC0011 of 2001, ten accused persons were charged with wrongfully confining abducted persons contrary to section 253 of the Penal Code. Although the statutory maximum for that offence is 7 years imprisonment, they were sentenced to a range of sentences from 18 months imprisonment for those who played minimal roles in the confinement, to 3 years imprisonment for those who were more culpable. Despite their guilty pleas, good character, and long delay before sentencing during which time all accused persons were in custody, the question of the suspension of the sentence did not arise.

Nor should it have arisen in this case. Even without the statutory limits contained in section 29(3) of the Penal Code, the taking of hostages, the use of drugs in yaqona, the exploitation of the already politically volatile situation that Fiji was experiencing, the use of firearms to maintain confinement and power, and the committing of a series of offences with a large group of people, ought to have led to immediate custodial sentences. The courts have a duty to the community to ensure that those who behave in a violent manner, who use firearms to confine members of the armed forces, who keep hostages and who hold the whole country to ransom for their own financial ends, will be punished in an appropriate manner.

This was clearly not an appropriate case for suspension. Under both section 29(3) of the Penal Code, and the common law principles of sentencing, the learned Magistrate erred in suspending these sentences. The 1st, 2nd, 3rd and 4th accused on Count 1, and the 1st, 2nd, 3rd, 4th and 5th accused on Count 3 had been convicted of offences the sentences for which should not have been suspended.

The result of the application

Section 334 of the Criminal Procedure Code provides:

“(1) The High Court shall (subject to the provisions of section 335) hear and determine the question or questions of law arising on the case stated, and shall thereupon, reverse, affirm or amend the determination in respect of which the case has been stated, or remit the matter to the magistrates’ court with the opinion of the High Court thereon, or may make such other order in relation to the matter, and may make such order as to costs, as to the court may seem fit, and all such orders shall be final and conclusive on all parties.”

Section 335 provides:

“The High Court shall have power, if it thinks fit –

(a) to cause the case to be sent back for amendment or restatement, and thereupon the same shall be amended or restated accordingly, and the judgement shall be delivered after it has been so amended or restated;

(b) to remit the case to the magistrates’ court for rehearing and determination with such directions as may deem necessary.”

These provisions limit this court’s jurisdiction to the determination in respect of which the case has been stated. The case has been stated only in relation to the suspension of the sentence. As State counsel said in his submissions, the State has no quarrel with the sentences themselves, only with the order for suspension.

As such, although the learned Magistrate erred in his approach to sentencing in that he failed to consider sentences on each count before deciding on totality, I make no orders as to the sentences on each count. They remain as they are.

However, I order that this case be remitted to the learned Magistrate to amend his sentencing remarks to the effect that there is no suspension. Instead each accused namely, Senitiki Naqa, Serupepeli Tuinakauvadra, Inoke Nairoroi, Peni Buka and Sailosi Latikau must be given immediate custodial sentences.

The answers to the questions posed on the case stated application are:

Q(i): Does a charge and subsequent guilty plea of unlawful possession of firearms contrary to section 4(1) 2(a)(ii) of Arms and Ammunition Act, Cap 188 fall within the ambit of section 29(3)(a) of the Penal Code, Cap 17?

A: Yes.

Q(ii): What is the nexus between section 29(3) of the Penal Code, Cap 17 and section 29(1) of the Penal Code?

A: Section 29(1) provides generally for a discretion to suspend sentences of less than 2 years for a period of less than 3 years. Section 29(3) provides that although short sentences of not more than 6 months imprisonment ought to be considered for suspension, suspended sentences (irrespective of length) ought not be considered for the categories listed in section 29(3)(a).

Q(iii): Did the Magistrate have the legal basis to suspend the sentences of Senitiki Naqa, Serupepeli Tuinakauvadra, Inoke Nairoroi, Peni Buka and Sailosi Latikau?

A: No.”

Nazhat Shameem
JUDGE

At Suva
18th July 2003