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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION
CRIMINAL MISCELLANEOUS CASE NO: HAA 18 OF 2016
BETWEEN : PAULIASI TASERE
Appellant
AND : STATE
Respondent
Counsel : Mrs. Litia Vateitei for the Appellant
Ms. L.Latu for the Respondent
Date of Hearing : 9th June, 2016
Date of Judgment : 17th June, 2016
JUDGMENT
Background
3. Being aggrieved by the sentence, Appellant filed this appeal within appealable time.
4. The grounds of appeal filed by Counsel for the Appellant are as follows:
5. The Summary of Facts placed before the learned Magistrate was as follows:-
On the 19th of April at day of March, 2015, between 100 hrs to 100 hrsPauliasiTasere (B-1) aged 40 years dispatched clerk of Tavakubu, Lautoka hired the taxi Reg. No. LT 184 driven by Monish Gounder (A-1) aged 27 years old Taxi driver of Tavakubu, Lautoka from Yasawa Street with two others.
(A-1) was told to go to Banaras and returned to town. At Banaras two passengers got off and boarded the taxi after twenty minutes to go to Commissioners drive. Whilst going to Commissioners drive through Drasa Avenue one Passenger got off. The remaining two passengers went to Commissioners drive and returned to town and they spoke to each other that they had no fare so the taxi driver stopped at Namoliavenue. One of the passenger fled from there leave (B-1) behind.
(B-1) was sitting in the rear seat started punching the driver on the head. (A-1) drove towards the police station and on the way (B-1) was punching him and damaged his T-shirt valued at $35.00 whilst the taxi was in motion. The taxi fare was also not paid to (A-1) amounting to $15.00.
Matter was reported to police (A-1) was sent for medical examination. (B-1) was arrested and charged for Assault Causing Actual Bodily Harm and Damaging Property and is appearing in custody.
Law
“It is well established law that before this Court can disturb the sentence, the appellant must demonstrate that the Court below fell into error in exercising its sentencing discretion. If the trial judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some relevant consideration, then the Appellate Court may impose a different sentence. This error may be apparent from the reasons for sentence or it may be inferred from the length of the sentence itself (House v The King [1936] HCA 40; (1936) 55 CLR 499).
In determining whether the sentencing discretion has miscarried this Court does not rely upon the same methodology used by the sentencing judge. The approach taken by this Court is to assess whether in all the circumstances of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies within the permissible range. It follows that even if there has been an error in the exercise of the sentencing discretion, this Court will still dismiss the appeal if in the exercise of its own discretion the Court considers that the sentence actually imposed falls within the permissible range. However it must be recalled that the test is not whether the Judges of this Court if they had been in the position of the sentencing judge would have imposed a different sentence. It must be established that the sentencing discretion has miscarried either by reviewing the reasoning for the sentence or by determining from the facts that it is unreasonable or unjust.
Analysis
Ground (i)Sentence is Harsh and Excessive
“You have expressed remorse and have begged forgiveness from court. You have cooperated with the police at the time of investigation. You are a first offender thus boasting a previous good character. You have further pleaded guilty at your earliest.”
Ground (ii): Custodial Sentence
16. Section 26 of the Sentencing & Penalties Decree provides as follows:
26. – (1) 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.
(2) A court may only make an order suspending a sentence of imprisonment if the period of imprisonment imposed, or the aggregate period of imprisonment where the offender is sentenced in the proceeding for more than one offence, -
(a) does not exceed 3 years in the case of the High Court; or
(b) does not exceed 2 years in the case of the Magistrate’s Court.
“Upon the above line of authorities court finds that the only fact that can be considered is the fact that you are a first offender. The court has already made a discount from your sentence considering this fact in mitigation. The offences you stand convicted are serious and the court consider that the objective of deterrence is more appealing in this sentence compared with the objective of rehabilitation, when considering the circumstances of the offending. The back drop of above findings this court concludes that there are no special factors or circumstances that would justify a suspension of sentence. Court therefore refrains from suspending your sentence. You shall serve this sentence in custody”.(Para 15).
“Further you have assaulted the complainant to prevent him going to the police station as you had no money to pay the complainant. Therefore, this is clearly an attempt to prevent the complainant exercising his right to receive the protection of the law. Moreover, you have exploited the complainant by using his taxi services to your benefit when you had no money to pay for same. The complainant been (sic) a taxi driver is bound to drive his passengers to their destinations without first requesting for money. He is thus a vulnerable victim. You had therefore clearly committed these offences on a vulnerable victim”.(Para. 8)
22. In DPP v Jolame Pita (1974) 20 FLR 5, the Supreme Court held:
“Once a court has reached the decision that a sentence of imprisonment is warranted there must be special circumstances to justify a suspension, such as an offender of comparatively good character who is considered suitable for, or in need of probation, and who commits relatively isolated offence of a moderately serious nature but not involving violence. Or there may be other cogent reasons such as the extreme youth or age of the offender or the circumstances of the offence as for example, the misappropriation of a modest sum not involving a breach of trust or the commission of some other isolated offence of dishonesty particularly where the offender has not undergone a previous sentence of imprisonment in the relevant past. These examples are not to be taken as either inclusive or exclusive, as sentence depends in each case on the particular circumstances of the offence and the offender, but they are intended to illustrate that, to justify the suspension of a sentence of imprisonment, there must be factors rendering immediate imprisonment inappropriate.”
Ground (iii): Inadequacy of Discount
Order
Aruna Aluthge
Judge
At Lautoka
17th June, 2016
Solicitors: Asta’s Law for the Appellant
Office of the Director of Public Prosecution for the Respondent
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URL: http://www.paclii.org/fj/cases/FJHC/2016/545.html