Raj v State [2008] FJHC 74; HAA032.2008 (18 April 2008)

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

Criminal Appeal Case No: HAA 032 of 2008

BETWEEN

JAMES ASHWIN RAJ
Appellant

AND

THE STATE
Respondent

Appellant in Person
Ms Nancy Tikoisuva for the Respondent

Date of Ruling: 18 April 2008

RULING

1. In this appeal, James Ashwin Raj, you are appealing against the sentence imposed on you by the Nasinu Magistrates Court in two cases. They have been consolidated into one appeal as Criminal Appeal Case No: HAA 032 of 2008.
   
2. I will deal with each separately. The two cases in the Nasinu Magistrates Court were:
   
   1. Criminal Case No: 685 of 2007
   2. Criminal Case No: 1593 of 2007
      

Criminal Case No: 685 of 2007

3. In this case you were charged with one count of Disorderly Conduct in a Police Station, contrary to section 47 of the Police Act Cap 85. The particulars are that you on 8 th day of May 2007, at Nasinu in the Central Division, behaved in a disorderly manner in a police station, namely Nasinu Police Station.
   
4. To answer this charge you appeared before the Nasinu Magistrate Court on 14 June 2007. Your right to counsel was explained to you and waived it. The charge was read and explained to you, to which you responded that you understood it. You then entered a Not Guilty plea. You were bailed to appear in court again on 5 July 2007 to allow prosecution to prepare and serve disclosures on you.
   
5. A pre-trail conference date was set for 26 July 2007. On that day you changed you plea to guilty. Summary of facts were outlined and you admitted it. You were convicted on that day and the matter was adjourned to 27 August 2007 for sentencing. Curiously on that day before sentencing you were ordered to pay $500 compensation.
   
6. You were sentence to 2 months imprisonment and the $120 you have already paid in court were ordered to be paid to the complainant for compensation.
   

Appeal Determination

7. I have carefully reviewed the court records in this case. I find the orders made by the Magistrate in this case absurd and unlawful.
   
8. The court record than states:
   

‘Court:

(1) Adjourned 27.8.07 Sentencing

(2) Accused to get $500 cash as compensation to the complainant

(3) Bail extended’

9. On the 24 September 2007 the court record states:
   

‘Court:

(i) Accused paid $120 cash today
(ii) $400 - $120, $280 balance
(iii) Adjourned 31.10.07 (mention) for accused to get $280 fine

10. I have said that I find the ruling of the Magistrate absurd because in a criminal case after a person is convicted, no orders for compensation can be made without proof of injury or loss to property or the victim has suffered loss, as a result of crime committed: section 160 Criminal Procedure Code Cap 21.
    
11. It will be noted from the above quotes from the records in the trial in the Magistrates Court that a compensation order was made without any explanation as to the basis in law for it. This failure is fatal and a miscarriage of justice. It invalidates the order to pay compensation made in this case.
    
12. The second matter that concerns this court is that the amount of compensation initially ordered was $500 but because the appellant was only able to pay $120 by 17 December 2007, it was again ordered by the Magistrate that that amount and not $500 be now paid to complainant as compensation. This change in the amount without any explanation indicates to this Court that the Magistrate may not have acted judiciously on the first occasion when ordering the $500 compensation.
    
13. Whilst there power in a court to order that compensation may be paid out of a fined lawfully imposed: section 161 Criminal Procedure Code Cap 21. There is no basis on the record available to this court that that was what the Magistrate was doing. There is no reference in the records that the court had lawfully imposed a fine, just compensation to be paid.
    
14. With regard to the sentence of 2 months imprisonment, the Magistrate does not provide the reasons for that sentence. This was a case in which the maximum term of imprisonment liable under the laws of Fiji is 3 months imprisonment. Because there is nothing in the record to show how the Magistrate reach its decision. In the absence of those grounds and given that the appellant in this case pleaded guilty to the charge, a sentence of 2 months is harsh and excessive, especially when the court was minded to also order compensation.
    
15. In the light of the issues raised above, I would allow the appeal against sentence in this case. I would order that the sentence be set aside. The new sentence will be 2 weeks imprisonment. Any money paid in regard to the compensation order made by the Magistrate must be refunded to the accused person.
    

Criminal Case No: 1593 of 2007

16. In this case you were charged with one count of Absconding and Failing to Surrender to Custody, contrary to section 25(1)(b) of the Bail Act. You pleaded guilty at the first opportunity. You were convicted. You were sentenced to 9 months imprisonment.
    
17. The core complain of the appellant is that the sentence is unprincipled and harsh and excessive.
    
18. I have carefully reviewed the court record and in particular the sentence determination of the Magistrate in this case. There are two issues that is obvious; the first that the appellant’s guilty plea was no properly discounted as a stand alone factor for which further discount may be given by a court. It should not be included as part of the mitigating factors. The second is that the starting point for the sentence of 9 months imprisonment, is two-thirds the maximum liable in law of 12 months imprisonment. There were no reasons provide for that high starting point.
    
19. In the light of the above I will review the sentence in the Magistrate’s Court with the above point in mind.
    
20. I would set the tariff for sentence to range from a non custodial to 6 months imprisonment. It is possible depending on the facts that one may go higher, but it will be exceptional. In this case I will take 5 months as my starting point.
    
21. For the mitigating factors I would reduce the sentence by 2 months to 3 months.
    
22. There were two aggravating factors accepted by the Magistrate:
    
    1. While on a bench warrant on Case No: 685/07, accused has been charged with 2 Robbery with Violence charges in File No 1606/07 and 1594/07.
       
    2. He has wasted the court’s time by not attending Court when required.
       
23. It is not an aggravating factor when some is charged, only when one is convicted, that conviction may be relevant in sentence determination in later cases. This is so because it is possible that the charges may not be proven at its trial and to use it as a basis of increasing a possible sentence for an offender in a current case, is unfair and improper. This factor will be disregarded on this sentence review.
    
24. The second aggravating factor was properly considered. For the aggravating factor I would add 1 month to make the term of imprisonment 4 months.
    
25. The guilty plea will be discounted separately and for that a discount of 5 weeks is given.
    
26. The sentence will be 11 weeks imprisonment.
    

ORDERS

27. This Court will make the following Orders:
    

For Criminal case No; 685/07

1. The sentence in the Magistrates Court is set aside to be substituted with 2 weeks imprisonment;
   
2. The compensation order made in this case is set aside and any money already paid by the accused as compensation under the Order of the Magistrates Court in this case is to be returned to him.
   

For Criminal Case No: 1593/07

3. The sentence in this case is set aside and substituted with an 11 weeks imprisonment.
   

Isikeli Mataitoga
JUDGE

18 April 2008.