Nacani v State [2007] FJHC 36; HAA026.2007 (20 April 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 026 of 2007

Between:

JONACANI NACANI
Appellant

And:

THE STATE
Respondent

Hearing: 13th April 2007
Judgment: 20th April 2007

Counsel: Appellant in person
Ms A. Tuiketei for State

JUDGMENT

On the 1st of August 2006, the Appellant escaped from lawful custody, by cutting and opening a window grill at Korovou Prison and climbing over the prison wall. He was at large until the 7th of September 2006 and was charged with the criminal offence of escaping from lawful custody. His case was called in the Suva Magistrates’ Court. He pleaded guilty and was sentenced to a consecutive term of 9 months imprisonment. He was later taken before a prison tribunal and punished again for the escape. He lost privileges, including remission, for 2 months and 18 days. He now appeals against sentence saying that the 9 month term is harsh and excessive, and that he has been punished twice for the same offence.

State counsel agrees that he has been punished twice. However, she submits that the 9 month term imposed is within the tariff, and that no charge should have been brought against him by the Tribunal once he had been sentenced by the courts. However she says that the Appellant’s remedy is in a review of the decision of the Prisons Tribunal. She confirmed that the Appellant was disciplined by the Prison Tribunal on the 26th of September 2006 for the offence of escaping from lawful custody, contrary to Regulation 123(3) of the Regulations, and that he lost one month’s remission. The Officer-in-Charge then endorsed the decision of the Prison Tribunal.

The 9 month term imposed by the Suva Magistrates’ Court was indeed within the tariff. In mitigation the Appellant had told the court that he was 27 years old, married with one child. He was serving a 7 year term, and was due for release in 2009. He had a large number of previous convictions most of which were imposed in November 2003. None were for escaping. The learned Magistrate did not err in imposing the 9 month consecutive term. However, his term has now in effect, been lengthened by at least one month, because he was punished again by the Prison Tribunal.

The question of double jeopardy in these circumstances was recently considered by the Court of Appeal in Joeli Tawatatau v. The State Crim. App. AAU0002 of 2007. In that case, the magistrates’ court had imposed a 6 month term of imprisonment for escaping. That was reduced to 5 months by this court to take into account the two months loss of remission subsequently imposed by the Prisons Tribunal. The Court of Appeal referred to section 20 of the Penal Code which defines the principle of autrefois convict which I set out fully:

"A person cannot be punished twice either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof he causes the death of another person, in which case he may be convicted of the offence of which he is guilty by reason of causing such death, notwithstanding that he has already been convicted of some other offence constituted by the act or omission."

The Court of Appeal found that the Prisons Regulations were part of our written law, and that the prisoner had been punished twice for the same offence and quashed the sentence imposed by the Magistrate. It found at page 12:

"In future, once an escaper is charged in the Magistrates’ Court under section 138 of the Penal Code, no charge of escape under the Prisons Regulations should be brought until the result of the Magistrates’ Court hearing is known. If the prisoner is punished by the Magistrate, no further charge of escape should be brought under the Regulations."

In this case, the Appellant was punished again by the Prisons Tribunal and there therefore was a breach of the autrefois convict principle.

However, I have no jurisdiction to quash the finding of the Prison Tribunal. The decision was endorsed by the Officer-in-Charge of the Korovou Prison, and the right of review is to the Commissioner of Prisons. I have no confidence that the Appellant is able to seek such review on his own.

For that reason I order that a copy of this judgment be sent to the Commissioner of Prisons, drawing his attention to the contents of it, and inviting him to review the decision of the Prisons Tribunal in relation to the Appellant on the 26th of September 2006. I also order that a copy of the decision of the Fiji Court of Appeal in Joeli Tawatatau v. The State be sent for his attention for future cases of escaping. The appeal is otherwise dismissed.

Nazhat Shameem
JUDGE

At Suva
20th April 2007