Basa v State [2014] FJHC 518; HAA12.2014 (15 July 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 12 of 2014

BETWEEN:

SAKIUSA BASA
APPELLANT

AND:

THE STATE
RESPONDENT

Counsel: Ms S Vaniqi for the Appellant
Mr S. Vodokisolomene for the Respondent

Date of Hearing: July 2014
Date of Sentence: 15 July 2014

JUDGMENT

[1] This is an appeal against sentence only. The was sentenced to 10 months imprisonment for assault causing actual bodily harm and 4 months imprisonment for escaping from lawful custody, after he pleaded guilty to the charges in the Magistrates' Court at Savusavu. The sentences were made concurrent. The total sentence for the two offences was 10 months imprisonment.

[2] The facts of the case were that the appellant invited his cousin to (the victim) to his home and assaulted him because he suspected the victim was having an extra-marital affair with his wife. The victim received a bruised eye as a result of the assault. The appellant was arrested and charged with assault.

[3] When the appellant appeared in the Magistrates' Court for arraignment he pleaded guilty to the charge. The learned Magistrate ordered the appellant to be remanded in custody for a day because the prosecution apparently did not have their file in court. Instead of surrendering himself, the appellant left the court house but was later arrested on the same day and remanded in custody. He was charged with escaping and when prosected in court with the additional charge, he pleaded guilty to the charges. The guilty pleas were therefore made at the first reasonable opportunity that was made available to the appellant.

[4] The grounds of appeal against sentence are:

Error in starting point

[5] The appellant contends that the learned Magistrate made an error in principle by picking up a starting point outside the higher end of established starting point for assault causing actual bodily harm.

[6] The tariff for assault causing actual bodily harm is from a suspended sentence to 9 months imprisonment (Jonetani Sereka v the State, unreported Cr. App. No. HAA027 of 2008 (25 April 2008).

[6] After citing the correct tariff for assault causing actual bodily harm, the learned Magistrate picked 12 months as a starting point, added 3 months as the aggravating factors and deducted 2 months for the guilty plea and 3 months for other mitigating factors. The learned Magistrate arrived at a sentence of 10 months imprisonment.

[7] Tariffs are established for an offence to bring consistency in sentencing. Tariffs are not included to fetter the sentencing discretion of the court. A court can sentence an offender outside the tariff but the decision to impose a sentence outside the established tariff for an offence must be justified by the facts ( ).

[8] In the present case, the learned Magistrate gave no reasons for picking a starting point outside the tariff for assault causing actual bodily harm and he gave no reason why he imposed a sentence outside the range. In my judgment.

[9] There is an error in the sentencing issue from the learned Magistrate's ground 1 succeed.

Grounds 2 and 3 – Guilty Plea

[10] The appellant submits the learned Magistrate erred in not according his 1/3 discount for his guilty plea. The total discount given for the guilty plea was 2 months. The appellant says that one third of 12 months is 4 months, and therefore the discount is for the guilty plea should have been 4 months and not 2 months. There is no hard and lest rule that one third discount has to be given in every case of an early guilty plea. However, as a matter of practice, the court's do give a generous discount of one third for any early guilty plea because the early guilty plea, may indicate that the offender is genuinely remorseful for his conduct. In this case, the appellant entered early guilty plea and expressed genuine remorse. He was each ..... to considerable discount in sentence for his early guilty plea and one third discount would have fairly reflected that fact. Grounds and 3 succeeds.

Ground 4 – Remand period

[11] It is clear from the sentencing remarks that the learned Magistrate failed to file into account that the appellant was in custody in remand for two weeks before sentencing. The failure to take into account the remand period in redundancy the sentence was an error. This ground succeeds.

Ground 5 – Excessive Sentence

[12] The appellant contends that the combination of the errors have resulted in an excessive sentence. I accept this contention. Ten months imprisonment for assault where the complainant sustained minor injuries is excessive in all circumstances of this case. This ground succeeds.

Result

[13] In my judgment the combination of errors have resulted in our excessive sentence for the appellant. The appeal against sentence is allowed and a sentence of 4 months imprisonment is substituted for assault causing actual bodily harm to be served concurrently with the sentence of 4 months imprisonment for escaping from lawful custody,

[14] The total effective sentence is 4 months imprisonment. Escaping from lawful custody is a serious offence. Suspension is in appropriate.

[15] The appeal is allowed.

Daniel Goundar
JUDGE

At Labasa
15July 2014

Solicitors:
Office of the Director of Public Prosecutions for State
Office of the Director of Legal Aid Commission for Accused