Nalawa v The State [2005] FJHC 571; HAA0100.2005L (16 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0100 OF 2005L

TEVITA NALAWA

v.

THE STATE

Appellant in Person
Mr. N. Nand for the State

Date of Hearing: 16 August 2005
Date of Judgment: 16 August 2005

JUDGMENT ON APPEAL

The appellant was convicted and sentenced by the Learned Magistrate at Lautoka on the 1^st April 2005 with respect to a total of 8 counts of breach of his bail conditions. He was sentenced to a total of 18 months imprisonment and the appellant appeals as to the sentence.

The facts as presented to the Learned Magistrate were that, the appellant on the 19^th March 2005 entered into the complainant’s (who is alleged to have been raped by the appellant) residence at Vomo Street and interfered with the complainant and the complainant’s mother, Karen Nalawa, who was a witness in the rape case against the accused. The complainant is 14 years of age.

A bail condition for the appellant was for him not to interfere with the witnesses and not to go within 500 metres of the complainant’s residence at Vomo Street, Lautoka. Further bail conditions were that the appellant report to Nadi Police Station every Tuesday and Saturday between 6.00am and 6.00pm. The appellant failed to report at Nadi Police Station between those hours on the 15^th January 2005, 11^th January 2005, 8^th January 2005, 1^st February 2005, 5^th February 2005, 22^nd February 2005 and 26^th February 2005.

The Learned Magistrate accepted the appellant’s plea of guilty acknowledging that he was a first offender and considered that he was charged with a very serious offence that is, raping a 14 year old child.

The Learned Magistrate then considering the first count, that is attending upon the premises of the complainant, sentenced the appellant to 9 months imprisonment. With respect to the remaining 7 charges, the Learned Magistrate sentenced the appellant to 9 months imprisonment and made one of those sentences consecutive with the first count and the remaining sentences concurrent with a resultant sentence of 18 months imprisonment.

The maximum sentence provided for under the Bail Act for breach of bail conditions is 12 months imprisonment.

I consider that the penalty imposed by the Learned Magistrate was indeed appropriate with respect to the first count when one considers the serious nature of that breach. The subsequent 7 counts, that is, the failure to report as required are indeed far less serious and it is difficult to reconcile that the same sentence should have been imposed for those offences particularly when the maximum penalty is imprisonment for 12 months.

I propose therefore that with respect to the second to eighth counts, that terms of imprisonment of 3 months be imposed in lieu of the sentence imposed by the Learned Magistrate and that the sentence with respect to count two be consecutive with the sentence on the first count and that the sentences with respect to counts 3 to 8 be concurrent resulting in a total sentence of 12 months imprisonment. I direct that the sentences date from the date on which the appellant went into custody, which is the 21^st March 2005.

The appeal therefore is allowed. The conviction is confirmed. The sentence of the Learned Magistrate with respect to count one is confirmed. Sentences with respect to counts 2 to 8 are quashed in lieu thereof a sentence of 3 months imprisonment with respect to each of those counts is imposed and I order that the sentence with respect to count 2 be consecutive to count one and the remaining sentences be concurrent and that all sentences date from the 0021^st March 2005.

JOHN CONNORS
JUDGE

At Lautoka
16 August 2005