Tikomainiusiladi v State [2008] FJHC 18; HAA 134.2007 (15 February 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal Case No : HAA 134 of 2007

BETWEEN:

LASARO TIKOMAINIUSILADI
Appellant

AND:

THE STATE
Respondent

Counsel: Appellant in Person
Ms. H. Tabete for the State

Date of Hearing: Thursday 24th January, 2008
Date of Judgment: Friday 15th February, 2008

JUDGMENT

[1] On 24 January 2007, I allowed the appellant’s appeal against sentence by reducing it to 10 months imprisonment. By the time the appeal was heard, the appellant had already served 10 months of his 18 months imprisonment sentence. The delay was due to the late filing of appeal by the appellant. I now give reasons for allowing the appeal.

[2] The appellant was charged in the Magistrates’ Court at Suva with the offence of damaging property, contrary to section 324 (1) of the Penal Code. The particulars of offence alleged:

LASARO TIKOMAINIUSILADI on the 9th day of May, 2006 at Suva in the Central Division wilfully and unlawfully damaged the front left door of taxi registered number LT 3045 to the total value of $200.00 the property of Sunil Dutt Singh s/o Ishri Dutt Singh.

[3] After numerous adjournments he pleaded guilty to the charge. The record shows:

"5 March 2007

For Prosecution: Sgt. Chand

Accused : Present

Prosecution: May the charge be put to accused.

He has indicated that he is seeking a progressive approach to this proceedings.

Accused understand the Charge.

Plead guilty.

I just want to plead because of I’m guilty of the offence. No one forced me to change my plea.

Reads and tender the summary of facts as Exhibit 1.

*1 EXHIBIT 1: SUMMARY OF FACTS.

Accused: I understand the facts.

I admit the facts.

Accused: this is my list of convictions.

*2 EXHIBIT 2: 8 PREVIOUS CONVICTIONS.

Convicted as charged.

Mitigation: seek Court’s lenience forgiveness.

23 years old.

Unemployed.

Form 6 at St. John Cawaci.

I was a garden boy at Corpus Christi.

Carpentry.

Sentence: Accused to be remanded in custody till 3pm today.

Stood down till 3pm for sentencing.

(sgd)

RESIDENT MAGISTRATE

5/3/07 10.13am

3pm

For Prosecution: Sgt. Tito

Accused: Present

Accused further remanded in custody till 12th March, 2007 for Sentencing. Adjourned till 12/3/07 before me in Court 3 at 9.15am.

(sgd)

RESIDENT MAGISTRATE

12 March 2007

For Prosecution: Suruj Kumar

Accused: Present

Stand down till 11 am in Chamber

(sgd)

RESIDENT MAGISTRATE

11.26am in Chambers

For Prosecution: Sgt. Suruj

Accused: Present

Court: Accused asked if he wants.

I can sentence him to community work at Salvation Army.

Accused: Prefer Prison.

Court: Adjourned to open Court for Sentencing.

Sentence in Open Court: Maximum sentence is 2 years.

For your guilty plea, I now sentence you to 12 months imprisonment. Given that your last conviction was that on the very similar offence of damaging property I will increase your sentence to 18 months imprisonment term.

You are to serve 18 months imprisonment, in the hope that you will learn your lesson and put a stop to the dangerous path you have developed the propensity judging from your previous convictions. 18 months imprisonment.

(sgd)

RESIDENT MAGISTRATE

12/03/07"

[4] The appellant appealed against sentence on the ground that it was harsh and excessive.

[5] There is no set tariff for the offence of damaging property. Counsel for the State has helpfully referred to two cases for guideline.

[6] In Navitalai Seru v The State, Criminal Appeal No. HAA0084 & 85 of 2002S, a sentence of 2 years imprisonment for the criminal damage of a door valued at $250.00 was reduced to 6 months imprisonment on appeal to this Court.

[7] In State v Naqa, Criminal Appeal No.HAA0023 of 2003S, Shameem J upheld a term of 12 months imprisonment for the criminal damage of Monasavu Dam to a value of $10,000.00.

[8] In this case, the learned Magistrate arrived at a term of 12 months imprisonment after taking into account the guilty plea. He then increased the sentence to 18 months imprisonment to reflect a similar previous conviction.

[9] In my view, the manner in which the learned Magistrate dealt with the appellant’s previous conviction is wrong in principle.

[10] As a matter of sentencing discretion, a court is entitled to receive evidence of an accused’s record of previous convictions. An offender who has previous convictions is considered to be of bad character and therefore is not entitled for any credit for previous good character.

[11] However, in taking previous convictions into account a court may not punish the offender twice for those offences. Nor can it be used to increase the sentence appropriate to the present offence.

[12] The appellant has eight previous convictions since 2001. His last conviction was in 2003 for the offence of damaging property for which he was sentenced to a term of 1 year imprisonment.

[13] After convicting the appellant on his plea of guilty, the learned Magistrate held proceedings in chambers to indicate to the appellant a sentence of community work. The appellant did not consent to the community work. The case was then adjourned for sentencing in open court.

[14] The proceedings held in chambers breached section 29 (4) of the Constitution, which provides:

"the hearing of courts (other than military courts) and tribunal established by law must be open to the public..."

[15] It should always be remembered that the integrity of a legal system depends on open justice. Justice administered in proceedings open to public is available for scrutiny and fair comments. The practice of holding proceedings in chambers where the accused is unrepresented is unwise, and is not to be encouraged.

[16] It is difficult to understand why the learned Magistrate took a serious view of the offence immediately after the hearing in chambers where he recommended a community work. The aggravating factor to which the learned Magistrate did not direct his mind was that the damage was done to a public transport vehicle, namely, a taxi. The courts consider an attack on public transport operators or their vehicles serious. Regrettably, the learned Magistrate did not direct his mind to this particular fact. Instead, he took a serious view of the appellant’s previous convictions.

[17] By increasing the sentence to reflect the earlier conviction for damaging property, the learned Magistrate was effectively punishing the appellant again for an offence which he has already served an imprisonment sentence.

[18] An offender cannot be punished twice for the same offence. This protection is provided by section 20 of the Penal Code, which states:

Person not to be punished for same offence

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.

[19] For these reasons, the appeal against sentence must be allowed. After taking into account the plea of guilty, the young age of the appellant, and the value of damage done to the complainant’s taxi, a term of 10 months imprisonment is appropriate.

Result

[20] Appeal allowed. Sentence reduced to 10 months imprisonment.

Daniel Goundar
JUDGE

At Suva
Friday 15th February, 2008

Solicitors:
Appellant in Person
Office of the Director of Public Prosecutions, Suva for the State