Basa v The State [2005] FJHC 161; HAA0061.2005 (4 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA0061 OF 2005

BETWEEN:

SAKIUSA BASA
Appellant

AND:

STATE
Respondent

Counsel: Appellant – In Person
Mr. Bulamainaivalu – for State

Date of Hearing & Judgment: 30th June, 2005

EX TEMPORE JUDGMENT

Background:

The appellant was charged with one offence of escaping from lawful custody. He pleaded guilty to that offence and was given a custodial term of 6 months to be served consecutively with a current serving term of 6 years (imposed by my sister Justice Shameem under HAC 034 of 2004S on the 9th of March 2005 some days before this offending).

Appeal

In his petition of appeal the appellant states that the learned Magistrate in making the 6 months custodial term consecutive to the 6 years imprisonment offended the totality principle of sentencing. In a practical sense when I heard from him this morning he emphasized the humanitarian grounds of his appeal.

Those grounds are essentially that prior to this offending he was one of those who was granted bail because of the conditions he had suffered at the Suva Prison.

It’s a matter of judicial record that the conditions at the Suva Gaol are extremely poor and those that serve terms of imprisonment there suffer unnecessary hardship as a result of under resourcing of the prison service and a failure by the Government to address the need to rebuild a more humane prison facility.

The appellant says and I accept that after receiving bail he did his best to try and address the outstanding criminal history in his life. I note that he was honouring the terms of his bail conditions and he was trying to get some Magistrate Courts matters disposed off.

He became frustrated at this exercise when he felt that no one would pay him the respect and courtesy of recognizing his willingness to deal with his previous offending. As a result he ended up in custody again and as an expression of frustration he took an extremely short run from the remand facilities in the High Court building at Suva towards the Suva Bowling Club where he was apprehended, returned to custody and faced these charges.

The Law

I am very grateful yet again to Mr. Bulamainaivalu for his diligence in preparing a succinct and accurate submission. He has placed before me principally the decisions of Clarke [1994] 15 Cr. App. R(S) 852(CA) and Hammond [1995] 16 Cr. App. R(S) 142 (CA). These cases clearly substantiate the proposition that a custodial term for escaping from lawful custody is inevitable and that in most cases that sentence should be served consecutively with any serving sentence.

I took care to explain to the appellant the effect of the law and to say to him that while I had considerable sympathy for the humanitarian aspects of his appeal there was nothing I could do at law to ameliorate the imposition of a consecutive term of imprisonment placed on a multiple offender for escaping yet again from lawful custody.

However, what may have been overlooked in the calculation of the total sentence for this offender is that he fully co-operated and pleaded guilty. The learned Resident Magistrate when considering his mitigation considered only the aggravating features and the need to apply deterrence. He did not mention in his sentence that against those aggravating features the one and only outstanding mitigation was this appellant’s co-operation and very early plea of guilty.

I take that co-operation and very early plea of guilty is a genuine recognition by the appellant that what he did was wrong. Having recognized his true culpability for this offending and accepted his fate I am of the view that he was entitled to a significant discount for his early plea and co-operation. I have said in previous decisions that an early plea and co-operation with the police is the best mitigation that should be reflected by a significant discount to the fully aggravated term of imprisonment.

In this case it is clear that the learned Magistrate fully aggravated the term of imprisonment and respected the totality principle by imposing six months imprisonment. I take into account the early plea, the fact that he is a serving prisoner facing at present 6 years in jail. I believe that a discount of 4 months should be given off that total term.

Conclusion

Accordingly I quash the sentence of imprisonment imposed by the learned Resident Magistrate in this matter of 6 months imprisonment consecutive to the appellant’s prison term and substitute it with a sentence of 2 months imprisonment consecutive to the prison term.

Gerard Winter
JUDGE

At Suva
4th July, 2005