Qarau v The State [2004] FJHC 122; HAA0067J.2004S (16 July 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0067 OF 2004S

Between:

EPINERI QARAU
Appellant

And:

THE STATE
Respondent

Counsel: Appellant in Person
Mr. W. Kurisiqila for State

Hearing: 9th July 2004
Judgment: 16th July 2004

JUDGMENT

The Appellant appeals against his sentence of 18 months imprisonment on the ground that it is harsh and excessive. His charge reads as follows:

Statement of Offence

BULKSTORE BREAKING ENTERING AND LARCENY: Contrary to Section 300(a) of the Penal Code, Cap. 17.

Particulars of Offence

EPINERI QARAU, on the 22nd day of March 2004, at Suva in the Central Division, broke and entered into the bulk store of FIJI NATIONAL PROVIDENT FUND and stole from therein assorted tools valued at $103.00, 12 energy saver bulbs valued at $174.00 and one bottle petroleum jelly valued at $1.00 to the total value of $278.00, the property of the said FIJI NATIONAL PROVIDENT FUND.

The Appellant pleaded guilty to the charge on the 23rd of March 2004. The facts were read out and he agreed to them. He admitted 40 previous convictions and in mitigation expressed remorse. He further said that he lived with his mother and brothers in Newtown and that he was unemployed.

Some aspect of the Appellant’s conduct in court must have led the learned Magistrate to believe that he needed a psychiatric examination, because he ordered such an examination immediately after mitigation. On the 20th of April 2004 the consultant psychiatrist advised the court that the Appellant was fit to plead. However, the report also said:

“Epineri is well known to both the prison authorities and the St. Giles Hospital. He suffers from a major form of mental illness, namely, Bipolar Affective Disorder and also has a dissocial personality disorder. He has had 10 admissions to St. Giles Hospital since 1986.

On this admission, he was unkempt and uncooperative. He had poor eye contact and showed underlying aggression. He was quite irritable. He gave irrelevant answers. He was rude and did not answer to questions. He denied hearing voices and did not express any delusions. He was showing symptoms of imminent relapse so he was commenced on medication. He has in the past been very aggressive and threatening in nature.

I am of the opinion that he was aware of his actions at the time of the commission of the alleged crime and as such should be held responsible for his actions. He is fit to plead.

For safety and security reasons I would suggest that he be treated in the prison environment rather than in the hospital.”

The plea was then taken again, and the Appellant pleaded guilty again. However on this occasion, the facts were not read and no fresh mitigation was heard.

The learned Magistrate took into account the remorse and other mitigation and said that he had taken into account the Appellant’s aggressive and threatening behaviour at the St. Giles’ Hospital. He said that the case warranted the imposition of an immediate custodial sentence and sentenced him to 18 months imprisonment. He recommended that he be reviewed by a psychiatrist whilst in prison.

State counsel submitted that the Appellant had previous convictions for offences of dishonesty and disorderly conduct dating back to 1985. He further said that the tariff for bulkstore breaking was 18 months to 3 years imprisonment and that the Appellant received a sentence at the lowest end of the tariff.

I would agree with him, except for the circumstances of the Appellant’s mental health. This case illustrates with some clarity the real difficulties experienced by the Fiji courts in the sentencing of the mentally ill. Those offenders who require treatment rather than punishment ought not to be confined in a prison facility. They should be treated for their mental illness. Unfortunately there are no facilities at the St. Giles’ Hospital for the criminally insane, especially those who have a violent propensity. The courts are often forced to sentence the mentally ill to a prison sentence, recommending psychiatric treatment whilst the offender is in custody. The justification for such sentences would appear to be the protection of the public. However, it is inescapable that the imprisonment of the criminally insane is wrong in principle unless the prison facility in question has been set up to treat the mental condition of the offender in secure premises.

At the hearing of this appeal, the Appellant told me that he had not been reviewed by any psychiatrist whilst in custody, and that he was no longer taking his medication because of the side effects experienced by him. This, if correct, reveals the real difficulty which is the consequence of the imprisonment of the mentally ill in facilities not intended to treat for such illnesses. It is unjust to imprison those who have committed offences and who are suffering from mental illness. It is also wrong to release the dangerously insane while they remain a danger to the public. The answer must surely be the building, or the development of a special facility for the criminally insane, focussing on the treatment of the offenders, and kept detained until certified to be no longer a risk to the public. Prison without treatment is not the place for the mentally ill.

However, neither the presiding magistrate nor I have powers to order the detention of the Appellant at St. Giles’ Hospital. Sections 148 and 150 of the Criminal Procedure Code provide that a court can report a case to His Excellency the President for an order for confinement in a mental hospital where the accused is either unfit to plead, or has been found to have committed the offence whilst insane. In this case the Appellant was found to be fit to plead, and sane at the time of the commission of the offence.

In this case, I see no alternative to a prison sentence provided the recommendation for treatment is followed. To check that it is followed, I intend to deliver my final judgment in this matter one month from today, on August 13th 2004. In the meantime, the prosecution must obtain a further report from the St. Giles’ Hospital confirming that the Appellant has been receiving medication and treatment whilst in custody.

Nazhat Shameem
JUDGE

At Suva
16th July 2004