Vasuca v State [2010] FJHC 586; HAA24.2010 (10 December 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 24 OF 2010

VILITATI VASUCA

vs

STATE

Appellant in Person
Miss M. Fong for the State

Date of Hearing: 25 October and 9 December 2010
Date of Judgment: 10 December 2010

JUDGMENT

1. On the 9th August 2010 in the Magistrates Court at Lautoka this appellant entered a plea of guilty to one charge of escape from lawful custody and a plea of not guilty to a charge of serious assault. On the 23rd August 2010 a set of facts (including facts relating to the assault) was read to the appellant who then admitted them. The Magistrate thereupon said "I convict the accused".

2. On the 6th September 2010, the Magistrate passed sentence, sentencing this appellant for both the escape and the assault to six months imprisonment and nine months imprisonment respectively, to be served consecutively with a minimum term of 9 months.

3. Miss Fong, for the State, in her usual fair manner has quite properly conceded the appeal in this regard.

4. This was an unfortunate oversight on the part of the Magistrate when he sentenced the appellant for an offence to which he had entered a plea of not guilty.

5. If matters not that the appellant admitted facts relating to the assault. It could well be that the appellant had a legitimate defence to the charge which he was never permitted to raise in a proper hearing.

6. It is uncertain if the appellant was actually convicted of the assault because the Magistrate's pronouncement is ambiguous but in any event I now quash the conviction (if so convicted) and sentence passed on the appellant in the Court below for the assault offence.

7. The appellant also prays that the sentence was harsh and excessive, so I now turn to the sentence passed on him for escape from lawful custody (6 months). In November 2008 the Fiji Court of Appeal delivered a judgment in Viliame Tuibua (AAU 0116.2007S) which carefully analysed the appropriate tariff for escape offences; the Court said:

"In order to assist uniformity and consistency in sentencing for the offence of escaping from lawful custody, we feel it appropriate to state that a sentence of between 6 and 12 months imprisonment is an appropriate usual tariff for this type of offence."

8. Obviously then, the sentence passed by the Magistrate for the escape offence was not only within the proper tariff for the offence, but was leniently at the bottom end of the appropriate range. His appeal against sentence for escape fails and is dismissed.

9. In conclusion therefore this appeal succeeds to the extent that the conviction (if any) and sentence for assault are quashed but he remains convicted of the escape offence and is sentenced to six months, a term he is presently serving.

10. The appellant will be returned to the Magistrates Court on Thursday 16th December, 2010 for trial on the charge of serious assault.

Paul K. Madigan
JUDGE

At Lautoka
10 December 2010