Namua v State [2011] FJHC 196; HAA010.2011 (1 April 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA010 OF 2011

BETWEEN:

PAULA NAMUA
Applicant

AND:

STATE
Respondent

Mr. M. Korovou for the State
Applicant in Person

Date of Hearing: 16 and 24 March 2011
Date of Judgment: 01 April 2011

JUDGMENT

[1] In the Magistrates' Court at Lautoka on the 13th November, 2009 the applicant was charged with one charge of assaulting a Police Officer on 19 May 2009, and a further charge of escape on the same day. On the 16th September 2010 he entered a plea of guilty to the escape charge and after facts were put to him which he agreed, he was convicted on that count.

[2] On the 14th October 2010, the learned Magistrate in passing sentence, sentenced him for both the escape and the assault, despite the fact that he had never been convicted of the assault charge.

[3] For the escape he was sentenced to 6 months imprisonment and the assault 12 months' imprisonment, the terms to be served consecutively but concurrently to two other escapes he had been convicted of.

[4] Unfortunately the Magistrate fell into error a second time when assessing the sentence against the applicant for escape. He took a starting point of 9 months, increasing that for aggravating features by 12 months to 21 months. He then, in allowing a substantial discount for the plea of guilty reduced the sentence by 9 months which should bring the total sentence for escape down to 12 months. The Magistrate however imposed 6 months for the escape; and 12 months for the assault on a police officer.

[5] The applicant applies for leave to appeal out of time. His appeal is in actual fact 22 days out of time. However with no objection from the State, and with the appeal being clearly successful from the start, the application was allowed and the appeal itself validated.

[6] The appellant originally appealed against sentence on the assault charge, a charge to which he had pleaded not guilty and of which he was never convicted; an appeal which must obviously succeed.

[7] An appeal against conviction cannot stand, because he never was convicted, and therefore with the sentence quashed, the appellant remains charged of one offence of assaulting a police officer on 19 May 2009, an offence to which he has pleaded not guilty and an offence which must now be tried in the Magistrates Court. The appeal against sentence succeeds and the 12 month term quashed.

[8] An error of sentencing in respect of the escape charge was made in the appellant's favour. There should be no prejudice occasioned to the appellant because of the error and this Court does not disturb the 6 month sentence. In any event, the appellant has served the bulk of it if not all of it by now.

[9] The appellant will appear in the Lautoka Magistrates Court on Wednesday 6th April, 2011 at 9.15am to answer the assault charge. A production order will issue.

Paul K. Madigan
JUDGE

At Lautoka
01 April 2011