Ali v The State [2004] FJHC 484; HAA0092.2004L (15 October 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0092 OF 2004L

AIYAZ ALI
f/n Hafizul Rahiman
Appellant

v.

THE STATE
Respondent

Appellant in person
Mr. K. Tunidau for the respondent

Hearing & Ruling: 15 October 2004

RULING

The appellant pleaded guilty to having breached his bail conditions and was convicted and sentenced at the Ba Magistrates Court on the 23^rd April 2004. The appellant was sentenced to 12 months imprisonment.

Statement of Offence

BREACH OF BAIL CONDITION: Contrary to section 252(2)(b) of the Bail Act No. 26 of 2002.

Particulars of Offence

AIYAZ ALI s/o Hafizul Rahiman between the 27^th day of October 2003 and 18^th day of January 2004 at Varoka, Ba in the Western Division, breached the condition of bail by not complying with the condition imposed by the Ba Magistrates Court.

The facts as admitted by the appellant before the Learned Magistrate are that having been charged with 5 others for robbery with violence at Padarath’s Poultry Farm and for 4 other counts of robbery with violence and resisting arrest, the appellant was granted bail on the 8^th October 2003 subject to conditions that he be required indoors between 7.00pm and 7.00am and to report to Ba Police Station between 8.00am and 4.00pm every 7 days a week.

The appellant reported at Ba Police Station on the 9^th October 2003 until the 13^th October and from the 14^th October 2003, he did not report at Ba Police Station in breach of his bail condition. Police attempts to locate him were unsuccessful.

On the 18^th January 2004, the appellant was arrested on a chase by police at Buabua, Lautoka when the stolen vehicle in which he was traveling, after committing robbery at Dr. Jayant Patel’s house, crashed into a creek.

Section 26 of the Bail Act states:

“A person who has been released on bail and who fails without reasonable cause to surrender to custody commits an offence and is liable on conviction to a fine of $2000 and 12 months imprisonment.”

The Learned Magistrate took into account the written submissions of the appellant mitigation and then said and I quote:

“Plead guilty. Mitigation. Imprisonment term is 12 months mandatory with effect from today, backdated to 20/1/2004, date of remand in custody.”

Section 26 provides for a maximum penalty of 12 months imprisonment, not a mandatory term. Whilst the appellant has an appalling record, which includes escape from custody, it does not justify the maximum penalty, particularly in the light of the plea of guilty all be it, that such plea was not entered on the first occasion.

In the circumstances, a term of 9 months would seem appropriate.

The appellant also appeals against conviction however this can only succeed, following a plea of guilty, if it can be shown that the plea is equivocal.

The appellant is indeed a very experienced court user and there is nothing before me that suggests that the plea of guilty was equivocal.

The appeal against conviction is dismissed.

The appeal against sentence is allowed and the sentence of the Learned Magistrate is set aside and the appellant is sentenced to 9 months imprisonment to date from 20 January 2004.

JOHN CONNORS
JUDGE

At Lautoka
15 October 2004