Vasukiwai v State [2006] FJHC 85; HAA 141-142.2005 (10 February 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO. HAA 141-142 OF 2005

BETWEEN

AKANISI VASUKIWAI
Appellant

AND

STATE
Respondent

Counsel: Appellant - In Person
Mr. A. Ravindra-Singh - for State

Date of Hearing/Decision: 10^th February, 2006

EXTEMPORE DECISION

This is an extempore decision given at the end of a brief sentencing appeal and as such I reserve the right to perfect the judgment once it has been transcribed for me.

Background

The appellant faced the following charges in the Magistrate Court. Under Case Reference No. 470/05 one charge of being drunk and incapable contrary to Section 5 of the Minor Offences Act, Cap. 18 and one charge of forfeiture of bail. In respect of Case Reference No. 1425/05 one charge of drunk and disorderly under the Minor Offences Act, Cap. 18 and one charge of forfeiture of bail.

The facts surrounding the offending can be briefly stated. In 470/05 the appellant was found lying on the pavement outside Club 2000 by policemen. They endeavoured to wake her up but she was too drunk to respond. She was taken to the Central Police Station and processed. In respect of this charge she failed to appear when called upon. In Case 142/05 on the 10^th of July 2005 another mobile police team were called to a report of fighting in progress at the 4 'JS Restaurant on Gordon Street in Suva. They attended and found the appellant in a heated argument with a young man. When told to moderate her behaviour she was too drunk to listen and she swore at the police. She was then charged and bailed from the Suva Magistrate's Court but failed to answer her bail.

The appellant came before the learned Magistrate on the same day the 19^th of September 2005 for sentencing in respect of both brackets of offending.

The learned Magistrate dealt with the offending separately. However, I apprehend that the effect of his sentence has been incorrectly perceived.

There is the one sentence imposed in respect of all matters but it is repeated in the record as if it were a separate sentence in respect of both brackets of offending.

The State support that view and in my opinion properly concede the sentencing appeal.

There is no way that a total sentence of 2 years and six months imprisonment is deserved for this type of offending.

What the learned Magistrate, I am sure, meant to do was to impose consecutive sentences as between the charges in each file but as between the two files ensure that any sentence was served concurrently; so that the total term was in effect one year and three months imprisonment.

I have spoken with the appellant this morning. Her time in jail has made her realize that she does have an alcohol problem. She assures me that she is going to seek counselling for that problem and do her best to abstain from alcohol once released from jail. I accept those assurances from her as genuine.

When looked at in terms of the totality principle there is no way a sentence of two years and six months could not be justified for these four offences.

That is not to say that persistent offences of being drunk and disorderly can be ignored or breaches of bail condoned. They cannot. It is, however, always the duty of the court to sit back and make an assessment as to whether the totality of any penalty is in all the circumstances just and fair.

Conclusion

Accordingly for these reasons and bearing in mind the concession made by the State I grant the sentencing appeal. The sentences imposed in the Magistrates Court under the various references on the 19^th of September 2005 are quashed. The level of sentencing is maintained that is 15 months imprisonment. However, all sentences are now to be served concurrently so that the total term of imprisonment to be served is one year and 3 months imprisonment.

Hon. Justice G. Winter
High Court of Fiji at Suva

Gerard Winter
JUDGE

At Suva
10^th February, 2006