Baba v Attorney General of Fiji [2020] FJHC 654; HBA23.2019 (10 August 2020)

In the High Court of Fiji
At Suva
Civil Jurisdiction
HBA 23 of 2019

In the matter of an application for leave to apply
for judicial review of the calculation of concurrent
sentences under section 14(2) (o) of the Constitution

Filipe Baba
Applicant
v
Attorney General of Fiji
Respondent

Counsel: The applicant in person

Ms N. Ali with Ms S. Chand for the respondent
Date of hearing: 10^th February,2020
Date of Judgment: 10^th August,2020

Judgment

1. The applicant seeks leave to review the calculation of the concurrent sentence imposed on him by the Magistrate Court, on the ground that there was a miscalculation of his total sentence by the Corrections Department and the calculation exceeds the jurisdiction of the sentencing limits of the Magistrate.
   
2. The applicant states that in Case no. 1849 of 2008, on appeal, the High Court had ordered a retrial after he served 1 year, 8 months. He had to spend another 2 years, 11 days at the Suva Remand Centre after the retrial was ordered, as there was no committal warrant for the second case. In Case no. 443 of 2010, on 6^th June, 2014, he was sentenced to 9 years imprisonment and 8 years non-parole period. Thereafter, he was sentenced to 12 months for another case. At the end of that term, he was released, as there was no record of the second case with the Corrections Service administration.
   
3. After the retrial was concluded on 30^th April, 2019, a term of 6 years with a non-parole period of 5 years was imposed. The term of imprisonment was to run concurrently to the present term. The applicant states that the imprisonment should commerce from 26^th September, 2013. The applicant concludes that the unlawful addition of 2 months and 18 days by the Corrections Dept makes his sentence more excessive by 9 years, 2 months and 18 days. There was no due tribunal process to pronounce on its legality is unfair and deprives him of the inherent right to life.
   
4. Pita Mataki, Chief Corrections Officer in his affidavit in response states that the applicant’s first conviction for rape was quashed. He was subsequently remanded until 17 March, 2017, convicted for aggravated robbery and sentenced to 12 months imprisonment. He was released on 16 November, 2017, after serving his sentence. On 6 February, 2018, he was apprehended and taken back into prison custody to serve the 9 year sentence, in respect of his conviction of 6th June, 2014, for rape. He was out of prison and not serving his 9 years sentence for 2 months and 18 days. He is serving a period of 9 years and a non-parole period of 8 years. He has 4 years 6 months, 1 day remaining to complete.
   

The determination

5. The applicant contends that his imprisonment should commence from the date of sentencing of his first offence, viz, 26 September, 2013.
   
6. The respondent submits that the sentence of imprisonment commences on the day the sentence for the second offence was imposed, viz, 6 June, 2014.
   
7. The applicant was sentenced by the Magistrates’ Court as follows:
   • (I) Case no. 1849 of 2008
     1. On 26 September, 2013, he was convicted and sentenced for a term of 8 years with a non-parole period of 7 years. On appeal to the High Court, his conviction was quashed and a retrial was ordered.
     2. On 30^th April, 2019, he was sentenced to 8 years imprisonment, in the first instance. The sentence reads as follows:

Since you have already served 01 year and 08 months for this case before the appeal was dealt with, as per section 24 of the Sentencing and Penalties Act 2009, this court is obliged to deduct your sentence by the said period.

You are therefore to serve 6 years and 04 months imprisonment in custody effective forthwith. You are eligible for parole until you have served 05 years and 04 months.

The above sentence is to be served concurrently to your present imprisonment term.

(II) Case no. 443 of 2010

On 6 June, 2014, he was sentenced to 9 years imprisonment with a non-parole period of 8 years for the offence of rape “to be concurrent with his present sentence”.

8. The answer to the contention raised by the applicant is contained in section 23(1) of the Sentencing and Penalties Act, 2009, which states:

A sentence of imprisonment commences on the date that it is imposed. (emphasis added)

9. This section clearly provides that the sentence of imprisonment commences on the day it is imposed. The period during which an offender absconds is not counted.
   
10. In my view, a sentence cannot be back dated.
    
11. In my judgment, the applicant’s sentence commenced on 6 June, 2014, and he has to serve 9 years imprisonment with a non-parole period of 8 years from that date.
    
12. The applicant also complains that a period of 2 months and 18 days has been unlawfully added.
    
13. I do not find that contention correct, as the applicant had been out of prison for 2 months, 18 days, as stated in the affidavit in response.
    
14. Section 23(2) of the Sentencing and Penalties Act provides that “If an offender lawfully imprisoned escapes or fails to return after an authorized absence, the period between then and the day on which the offender is returned to custody does not count in calculating the term to be served.”
    
15. In my judgment, the applicant’s sentence has been correctly calculated in accordance with the provisions I have referred to.
    
16. In any event, as stated in Silatolu v The State (HAM 163 of 2014):

... it is not within the jurisdiction of the court to interfere with the Commissioner of Prison’s role in determining when the convict is to be released, having served now his minimum term.

17. The Supreme Court in Muneshd v The State, (CAV 003/2012) declared that the Court cannot interfere with the opinion of the Prison authorities.
    
18. The applicant referred to the decision of the Court of Appeal in Tuimereke v State, [2014] FJCA 15(26^th February,2014). In that case the Court commented that the calculation of the total sentence “appears to be incorrect” and recommended that the Dept of Corrections recalculate the total sentence.
    
19. The application for leave fails.
    
20. Orders
    1. The application for leave to apply for judicial review is declined.
    2. I make no order as to costs
       

A.L.B. Brito-Mutunayagam

JUDGE

10^th August,2020