Namua v State [2008] FJHC 106; HAA025.2008 & HAA026.2008 (15 May 2008)

IN THE HIGH COURT OF THE FIJI ISLANDS
APPELLATE JURISDICTION
AT SUVA

Criminal Appeal Case No. HAA 025 & 026 of 2008

BETWEEN:

OSEA NAMUA
Appellant

AND

THE STATE
Respondent

Counsel: Appellant in Person
Ms. W. George for the State

Date of Ruling: 15 May 2008

RULING

1. Osea Namua, you were charge with two separate and distinct offences, namely:
   
   1. Absconding and Failing to surrender to Bail: contrary to section 26(1) of the Bail Act 2002;
      
   2. Escaping from Lawful Custody: contrary to section 138 of the Penal Code Cap 17.
      
2. On 18 January 2008 after you pleaded guilty to the charge of Absconding Bail and Failing to Surrender to Bail and were sentenced to 6 months imprisonment. You were also sentenced to 12 months imprisonment for the Escaping from Lawful Custody charge under section 138 Penal Code Cap 17. The court also ordered that these two sentences be served consecutively.
   
3. This is an appeal against sentence only.
   

Grounds of Appeal & Submissions

4. By letter dated 28 January 2008, the appellant submitted his petition of appeal, the following ground were outlined therein:
   
   1. The sentence imposed on both counts is manifestly harsh and excessive It did not take into account that the appellant should be given another chance to rehabilitate himself;
      
   2. His fair trial was denied because LAC counsel who represented the appellant did not take instruction from him;
      
   3. The learned magistrate did not carefully consider the mitigating factors;
      
   4. His guilty plea was not properly deducted from the sentence.
      
5. The State as respondent through Ms Waleen George, responded to each of the grounds raised by the appellant in written submission filed in court on 27 March 2008. The court found these submissions were very useful indeed.
   
6. On 9 May 2008, when the matter was for ruling, the appellant stated in court that he had filed further grounds to his appeal. A copy was delivered to the court and a copy given to counsel for the respondent.
   
7. When considering the new grounds of appeal filed by the appellant, the court wondered whether it relates to the facts and evidence in the court records of the two cases from which the sentence appeal is from or to another case. They were most unhelpful and merely confused the clarity in the initial grounds of the appeal filed. The court will review the entire sentencing by the learned Magistrate in considering the relevant issues raised.
   

Appeal Determination

8. Before considering the particularize grounds of appeal, this court would make the following finding: the guilty plea in this case was unequivocal. There is no basis advanced by the appellant nor evident from the court record to challenge that fact. Some of the claims made in the second set of so called grounds of appeal are irrelevant because there were no trial as such in this instance because the appellant had pleaded guilty and admitted the summary of facts that were outline to him in court. The claims that evidence were admitted contrary to law is incorrect.
   
9. The appellant this late in the appeal process claims that his rights under sections 28 and 29 of the Constitution were infringed. These claims were not substantiated. On the face of the court record it appears misinformed.
   
10. In considering the way the 4 grounds of appeal was worded, the appellant’s grounds of appeal is really only one, namely, that the sentence passed by the learned Magistrate was harsh and excessive. The other so called 3 grounds are really the basis on which the appellant’s claim is being made. I will now review the sentence in the court below
    
11. In considering the sentence of 12 months imprisonment passed on the Escaping from Lawful Custody, contrary to section 138 of the Penal Code cap 17, I have had to consider the court record. In passing sentence the learned Magistrate said ‘I am minded to sentence you to 18 months imprisonment but for your guilty plea I reduce it to 12 months’.
    
12. The appellant is not a first offender, He is a very experienced offender as evident from his list of previous convictions. But for this offence this is a first for him. Against that fact and that the tariff for this offence is 1 to 9 months imprisonment: Savenaca Pe v The State HC: HAA 0024 of 1997, the proper starting point of the sentence should be 6 months imprisonment. There were no mitigating factors submitted to the learned Magistrate before passing sentence on this charge. I find none from the court record either. The aggravating factor here was that the appellant was at large for 8 months before he was apprehended.
    
13. One of the factors that is relevant for the court to consider in passing sentence is the time taken before the appellant was apprehended: Naituku v The State HC Crim App No: 003 of 1996. In this instance it took 8 months before you were apprehended and when you escaped you broke lourves in a public building to make good your escape as set out in the summary of facts admitted by you. For these aggravating factors your sentence would be increased by 6 months to 12 months imprisonment. For the guilty plea the sentence would be further discounted by 4 months.
    
14. The proper sentence for the Escaping from Lawful Custody charge should be 8 months imprisonment.
    
15. Turning to consider the sentence of 6 months imprisonment for Absconding and Failure to Surrender to Custody, contrary to section 26(1) of the Bail Act 2002.
    
16. I have reviewed relevant case law, especially cases in which the High Court had passed sentence for the same offence and in similar circumstances to this case. I refer in particular to the following cases: Varani v The State FJHC HAA 014 of 2007; Buakula v The State [2007]FJHC 75;HAA 104 of 2007; Varani v The State [2008] FJHC 8;HAA 009 of 2008.
    
17. It is important that accused persons as was the case with the appellant at the time these offences were committed, show respect for court procedures and process. Willful failure and disobedience of Court Orders and flagrant disregard of rule of law must be met with appropriate sentence.
    
18. I find the sentence of 6 months imprisonment for this charge in the circumstances of this case proper. It is not excessive. I uphold the sentence passed by the learned Magistrate.
    
19. In considering whether the sentence of 8 months imprisonment should be concurrent or consecutive to the 6 months imprisonment term passed on Absconding and Failure to Surrender to Bail, I agree with Justice Shameem’s view, which the Supreme Court endorsed recently in Alifereti Misioka v The State FJSC CAV 0012 of 2007.
    

‘..If sentences for escaping are to have any deterrent effect at all, they must serve consecutive to existing terms, so that the result is to lengthen the period of incarceration.’

20. In the light of the above, the revised sentence of 8 months imprisonment for the charge of Escaping from Lawful Custody will be served consecutive to the 6 months sentence for the charge of Absconding and Failing to Surrender to Custody.
    
21. The sentence appeal partially succeeds. The sentence in the Magistrate Court is varied to the extent that the total sentence is now 14 months imprisonment and not 18 months imprisonment.
    

Orders

22. The court make the following Orders:
    
    1. The appeal succeeds partially;
       
    2. The sentence in the magistrates Court is varied to the extent that the total sentence is now 14 months imprisonment, effective from the 18 January 2008.
       

Isikeli Mataitoga
JUDGE

At Suva