Neidiri v State [2008] FJHC 198; HAA34.2008 (3 September 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No. HAA 34 of 2008

No. 32 of 2008

BETWEEN:

EPELI NEIDIRI
1st Appellant

SIKELI VUNIMOLI
2nd Appellant

AND:

STATE
Respondent

Hearing: 3rd September 2008
Ruling: 3rd September 2008

Counsel: 1st Appellant in person
2nd Appellant in person
Ms. Lidise for the Respondent

RULING ON WILFUL REFUSAL TO PAY FINE

The two appellants were sentenced on appeal to terms of imprisonment and fines. In default of the payment of fines, they were to serve 6 months imprisonment.

The record shows that they did not pay their fines and they were summoned to explain why they had not paid. They were so summoned because the record of the learned judge did not show that a means test was held before the fines were imposed.

The sentences imposed by his Lordship Justice Govind were 13 months imprisonment and $250 fine in default 6 months imprisonment for the 1st appellant and 21 months imprisonment and a fine of $200 in default 6 months imprisonment, for the 2nd appellant.

The 1st appellant said that he had paid his fine through his sister at the Ba Magistrates Court. This is now confirmed by the Ba Magistrates Court. The 2nd appellant says that he has no means to pay. He was an operator at Vatukoula but he has no savings (other than his FNPF), and while serving has no means.

In Sereima Bokadi v The State [2002] HAA 75/02S, I considered the role of a sentencing court before a fine was imposed or before a warrant of commitment was issued for non-payment.

Such an inquiry is necessary because section 23(1) (c) of the Constitution provides: "a person must not be deprived of personal liberty except:

(c) for the purpose of executing the order of a court made to secure the fulfillment of an obligation imposed on the person by law;

and section 23(2) provides:

"Paragraph (1) (c) does not permit a court to make an order depriving a person of personal liberty on the agreed of failure to pay maintenance or a debt, fine or tax unless the court considers that the person has willfully refused to pay despite having the means to do so".

In Bokadi (supra) it was held that the court should consider regularity of employment, expected and current wages, financial burdens on the offender and other sources of income. It is wrong to expect other people (such as family members) (to pay the fine (except in the case of a juvenile).

In this case the 2nd appellant is currently serving his term of imprisonment, is no longer employed, has no savings and was supporting a younger sister through school. His wages when he was working was $200.

It is regrettable that this appellant did not tell the appellate judge that he had no means to pay the fine. It is even more regrettable because his co-appellants have paid their fines. However I am not persuaded that the 2nd Appellant is willfully refusing to pay his fine. To order him to serve the additional 6 months in default would be in breach of section 23 (2) of the Constitution.

I decline to issue the warrant of commitment for him. I accept that the 1st Appellant has paid his fine. The Revenue Receipt Number is 18680.

Nazhat Shameem
Judge

At Lautoka
3rd September 2008.