Tamani v State [2012] FJHC 1306; HAM 029.2012 (7 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO: HAM 029/2012

BETWEEN:

MACIU TAMANI
APPLICANT

AND:

STATE
RESPONDENT

COUNSEL: Appellant in Person
S. Vodokisolomone for the Respondent/State

Date of hearing: 20th day of April 2012
Date of Judgment: 07th day of May 2012

JUDGMENT

01. MACIA TAMANI (hereinafter "the appellant") was charged for the offence of Escaping from lawful custody punishable under section 196 of the Crimes Decree No: 44 of 2009. The Charge was filed in the Magistrates Court of Suva.

02. The particulars of offence were:

"MACIU TAMANI on the 21st day of December 2011 at Suva in the Central Division while in the lawful custody of POC 71235 Sailosi Naiteqe, escaped from such lawful custody"

03. On the 28th day of December 2011 the appellant pleaded guilty to the charge and was convicted accordingly.

04. On 10/01/2012, the Appellant was sentenced to ten months imprisonment by the Magistrate Court, Suva.

05. Being aggrieved, the appellant has appealed against the sentence on the following grounds:

1. The Learned Magistrate erred in law and in enhancing the sentencing by 12 months from the starting point of three months and has failed to state in the sentence the aggravating features he is referring to.
   
2. That the balancing of Aggravating and Mitigating factors is erroneous.
   
3. That the consecutive sentence is wrong in principle as it breached the totality principle.
   
4. That the appellant reserves the right to file further grounds and amend grounds of appeal upon receiving the court record.
   

06. The general principle of sentencing under section 15(3) of the Sentencing and Penalties Decree No: 42 of 2009 States:

"As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentence of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this part"

07. The objectives of sentencing, as set-out in Section 4(1) of the Decree, are as follows:

1. To punish offenders to an extend and in a manner, which is just in all the circumstances;
2. To protect the community from offenders;
3. To deter offenders or other persons from committing offences of the same or similar nature;
4. To establish conditions so that rehabilitation of offenders may be promoted or facilitated;
5. To signify that the court and the community denounce the commission of such offences; or
6. Any combination of these purposes.
   

08. Section 26 (1) of the Sentencing & Penalties Decree 2009 states:-

"On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or part of the sentence, if it is satisfied that it is appropriate to do so in the circumstances"

09. The Learned Magistrate, after considering the aggravating factors and mitigation submissions has imposed 10 months imprisonment.

10. The tariff for the offence of Escaping from Lawful Custody contrary to section 196 of the Crimes Decree is between 6-12 months imprisonment stated by justice madam Shameem in Sakiusa Basa v The State Criminal Appeal No: HAA 12 of 2007.

11. It is clear from sentencing judgement that the appellant had escaped alone from working party at Suva Cemetery. There is no damage done to any prison property and the number of days whilst the appellant was at large before recapture was not more than one week. The facts revealed that the appellant committed the offence on 21st of December 2011 and he pleaded guilty to the offence on the 28th of December 2011. It was clear from these facts that the appellant was on the run not more than a week.

12. In the State v Sakiusa Basa Criminal Appeal No: HAA 12 of 2007 the appellant with others escaped from lawful custody by cutting burglar bars of the dormitory window and escape was committed on the 9th of May, 2006 and was re-arrested on 20th of June 2006. The accused was only sentenced for three months imprisonment for the case. In Tukana and Peni Gonemaituba Criminal Appeal No: HAA 121 of 2006 the court held the aggravating features are damage done to prison properties and the length of time which lapse before recapture, the planning and the number of people involved. The 12 month term was reduced to 06 months on appeal by Justice Madam Shameem.

13. Comparing to this case with those two cases, in this case there was no damage done to any property. The appellant has escaped alone and evidence of planning was minimal as the appellant had escaped from working party.

14. Considering the case authorities for Escaping from Lawful Custody, I find there are some merits to the appeal against the sentence of the appellant in terms of the length of the sentence imposed.

15. The second ground of appeal has no merit as it is clear that balancing act was done in this case between the mitigating factors and the aggravated factors.

16. In respect of third ground of appeal the totality principle is not affected as the appellant has totally committed a separate offence to the offence in which he was sentenced to prison prior to his escaping from lawful custody.

17. He has escaped from lawful custody while working at the Suva Old Cemetery and disregarded the law and order of this country.

18. Considering all the factors in to account I take 10 months as the starting point. I add 02 months for aggravating factors and deduct 08 months for the mitigating factors. The resultant sentence is 04 months imprisonment, consecutive to the present serving sentence. Appeal is allowed to that extent.

19. Appellant has 28 days to appeal.

P. Kumararatnam
JUDGE
At Suva
07/05/2012