Nasigaya v State [2011] FJHC 425; HAA015.2011 (10 August 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 015 OF 2011

BETWEEN:

1. JOSUA NASIGAYA
First Appellant

2. ISEI TURAGAKULA
Second Appellant

AND:

STATE
Respondent

Appellants in Person
Mr. S. Qica for the State

Date of Hearing: 06 & 14 July 2011 and 02 August 2011
Date of Judgment: 10 August 2011

JUDGMENT
[Appeal: Escape]
_______________________________

[1] Both appellants were charged in the Lautoka Magistrates Court on the 20th August 2010 with damaging property contrary to section 369(1) of the Crimes Decree No. 44 of 2009 and escape from lawful custody contrary to section 196 of that Decree. The first appellant pleaded guilty on the 20th August 2010, whilst the second appellant pleaded guilty on the 28th September 2010.

[2] Both were sentenced on the 2nd November 2010 to ten months' imprisonment for damaging property and eight months' concurrently for escape. This term of ten months imprisonment was made consecutive to the long terms that each appellant is presently serving.

[3] Each of the appellants is appealing against sentence only; each appellant praying that –

(i) The discount for plea of guilty was insufficient.

(ii) The fact that neither committed crime while at large was not considered.

(iii) No regard was had to the long sentence for each appellant is already serving.

[4] The facts are that on the 23rd May 2010 both appellants were serving prisoners at Natabua Prison. At about 3.45am they cut the cell block windows and bars of their dormitory and climbed over the fence after covering the barbed wire with a mattress, thereby escaping. Both of these appellants surrendered themselves the next day.

[5] Damaging property carries a maximum term of two years' imprisonment and escaping from lawful custody carries the same maximum term (two years). There is no "tariff" laid down for damaging property and various sentences have been handed down ranging from six months to eighteen months. The learned Magistrate took a starting point of nine months for the damage and seven months for the escape. He added five months for aggravating features which he considered to be:

• Damage to the prison cell block.
  
• Disregard for law and order.
  
• Reasons given for escaping (i.e. that they had been sentenced to a long term for robbery with violence).
  

He deducted three months for mitigation which he found to be remorse and an apology to the Court and then a further one month for the early guilty plea. In this way he arrived at the final sentence of ten months and eight months respectively.

[6] Sentences of six to eighteen months have been passed for damage and there is no reason not to set this band as the tariff for the offence. In assessing a starting point the Court would have regard for example to the value of the property damaged, the difficulty in restoring the property to its original condition, and to the value to the owner apart from financial considerations.

[7] The accepted tariff range for escape from lawful custody is between six and twelve months and sentences in the upper part of this band are reserved for repeated escapers.

Analysis

[8] With the greatest respect to an otherwise very careful and thoughtful Magistrate, this sentence was misconceived; the principal offence being dealt with in this case being escape, not damage. An appropriate sentence for escape should be cast first allowing for aggravating and mitigating features, and then the ancillary offence of damage to property in the course of the escape can be dealt with. Damage to property can never be an aggravating feature to escape when the offence of damage is actually charged at the same time.

[9] Both applicants are repeated escapers and an appropriate starting point would be twelve months imprisonment. Although escaping shows contempt for authority, that feature is inherent in the sentence passed and can not be an aggravating feature. There is real remorse shown however and it would be appropriate to reduce the sentence to ten months' to reflect that remorse.

[10] A plea of guilty was entered at an early stage and credit must be given for that, however it is inevitable that all escapers would plead guilty after their escape and recapture had been noted in the national media. The sentence should be reduced to one of eight months in recognition of the guilty pleas.

[11] Damage to the prison cell windows in the course of escape must attract a concurrent sentence and an appropriate sentence would be one of six months.

[12] I therefore quash the sentences passed below on each of these appellants and enter new sentences of:

(1) Escape – 8 months.

(2) Damage to property – 6 months concurrent.

[13] Pursuant to section 22(2)(b) of the Sentencing and Penalties Decree 2009, these sentences must be served consecutively to any sentence each is presently serving. It only makes sense that an escape sentence should be made consecutive to any other sentence the escapee is serving. Otherwise every prisoner would be encouraged to escape, knowing that he would suffer no additional penalty to what he is already serving.

Paul K. Madigan
JUDGE

At Lautoka
10 August 2011