Chand v The State [2005] FJHC 581; HAA0099.2005L (26 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0099 OF 2005L

VINESH CHAND
f/n Devi Chand

v.

THE STATE

Appellant in Person
Mr. N. Nand for the State

Date of Hearing: 26 August 2005
Date of Ruling: 26 August 2005

EXTEMPORE RULING ON APPEAL

The appellant applies by way of constitutional redress pursuant to section 41 of the Constitution of the Republic of the Fiji Islands for what he claims is double jeopardy or double punishment to which he alleges he had been subjected.

The appellant having been sentenced to a period of imprisonment and whilst serving that period imprisonment at Lautoka on the 23^rd August 2001 escaped from custody whilst working at Tavakubu Cemetery.

The appellant was at large for 2 months and on his recapture, was brought before a Magistrate at Lautoka and charged with escaping from lawful custody in breach of section 138 of the Penal Code. For that offence after entering a plea of guilty the appellant was sentenced to 9 months imprisonment to be served concurrently with the sentence imposed by that court in another matter.

The appellant says that following receipt of that 9 months sentence on the 24^th October 2001 that the Prison Authorities then charged him with loosing a cane knife and prison clothing and that he then received a punishment by the loss of privileges for 7 days and the loss of remission of 1 month. The latter being for having escaping from custody.

The appellant suggests that his sentence has in fact been increased as a result of the action taken by the Prison Authorities notwithstanding the sentences imposed by the Learned Magistrate. This he alleges resulted in a double jeopardy.

The State submits that the sentence has not increased but that the appellant has had added to his initial release date the period of 2 months to reflect the period he was at large.

There is nothing in the action taken by the Prison Authorities that amounts to a double jeopardy or double punishment for the same offence. It is a matter of law that the prisoner is required to serve the sentences imposed upon him unless granted a remission by the appropriate authorities. The fact that the prisoner escapes for a period of time does not mean that the sentence termination date remains the same by necessity the end date must be increased to reflect the period the prisoner is at large.

Similarly, prison authorities under the provisions of the Prison Act are entitled to take action in disciplinary matters such as the loss of property and it appears that in relation to this offence that the appellant has lost his privileges for 7 days.

Remission with respect to a prison sentence is not a right but is something that reflects good behaviour and the like. Any misbehaviour which in this instance was escaping from lawful custody will always have the potential to impact on the loss of remission. As I said, the remission is effectively a reward for good behaviour. Bad behaviour means you loose the right to that reward. It is not in itself an additional punishment; it is the removal of the benefit.

In the circumstances therefore I am satisfied there has in fact been no double punishment or double jeopardy to the appellant in this matter and the appeal is dismissed.

JOHN CONNORS
JUDGE

At Lautoka
26 August 2005