Whippy v State [2011] FJHC 486; HAA022.2011 (31 August 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 022 OF 2011

BETWEEN:

JULIAN WHIPPY
Appellant

AND:

STATE
Respondent

Counsel: Mr. P. Lomaloma for the Appellant
Ms. M. Fong for the State

Date of Hearing: 26 August 2011
Date of Judgment: 31 August 2011

JUDGMENT

1. On the 12th April 2011, in the Magistrates Court in Savusavu the appellant was convicted upon his own plea of guilty of one offence of failing to confine an animal by fence, contrary to section 3(1)(2) of the Trespass of Animal Act, Cap, 166. The charge particularised averred that on the 25th May 2010 being the caretaker of cattle he had failed to confine 50 heads of cattle by fence. On agreeing the relevant facts he was convicted and fined $1,000 being the sum of $20 for each head of cattle breaking free.

2. The appellant was originally charged with fifty charges, relating to each head of cattle escaping but these were consolidated into one charge by the police prosecutors.

3. The brief facts were that at about 6am on the 25th May 2010 a driver had discovered that the cows that belonged to the Simpson family and which were being cared for by the appellant had escaped and had caused considerable damage to three different dalo farms.

4. The relevant section creating the offence reads as follows:

3. (1) every owners of any animal shall keep such animal confined within a corral, fold, pen, stable or building at all times other then – (then listed are three exceptions)

(2) where any animal is found not confined within a corral, fold, pen, stable or building at a time when such animal is required to be so confined by the provisions of subsection (1), the owner of such animal shall be guilty of an offence and liable upon conviction to a fine not exceeding [$100].

5. In casting his sentence the learned Magistrate said this:

"The maximum sentence for each cattle is $20. The State filed a representative count of 50 counts representing a count for each cattle, for each count you are fined $20 for the 50 cows, the total fine is $1,000."

6. The appellant appeals the sentence on the grounds that it is harsh and excessive and that the escape was but on one occasion.

7. As Miss Fong very helpfully reminds the Court, the maximum penalty of $20 provided for under the section is now deemed to be $100. (Section 56(1) (a) of the Sentencing and Penalties Decree 2009).

8. The Magistrate had very unfortunately fallen into error by finding that the maximum sentence "for each cattle" is $20 and that the count to which the appellant pleaded guilty was a "representative count of 50 counts representing one count for each cattle". His reasoning is perhaps understandable by the fact that the same Magistrate had earlier heard the appellant plead not guilty to 50 separate charges at an earlier time before those charges were consolidated into one charge.

9. The malfeasance sought to be contained by the section is improper fencing and not the liberation of one head of cattle. Despite that, the appellant was facing only one charge and he should be sentenced only for that one charge and not 49 other putative charges. It certainly was not the case that there was one charge for one head of cattle and 40 other cases were being taken into account.

10. The appeal against sentence must succeed. The maximum penalty for the offence is $100 and for reasons unstated the Magistrate sought to impose the maximum penalty. I then defer to the intention of the Magistrate and quash the sentence of $1,000 fine and impose a fine of $100 to be paid within fourteen days hereof.

Paul K. Madigan
Judge

At Labasa
31 August, 2011