Cerevakawalu v State (No. 1) [2001] FJLawRp 62; [2001] 2 FLR 262 (6 August 2001)

SERUPEPELI CEREVAKAWALU AND OSEA BALEASAVU v STATE (No. 1)

High Court Criminal Appellate Jurisdiction
27 July, 6 August, 2001 HAA 042/01S

Wrongful confinement – criminal intimidation – appeal against sentences – whether magistrate failed to take into account prison discipline – whether sentence by Court is disproportionately severe treatement or double jeopardy – 12 month sentence affirmed - Constitution ss25(1) and 28(1)(k); Penal Code ss253, 330(b); Prisons Act ss82, 83

The Appellants, both serving prisoners forcefully took over the prison and held 12 officers captive for one day. A2, who threatened to injure prison officers was charged with criminal intimidation. The Magistrate sentenced the Appellants to 12 months consecutive to their current term, but A2 faced a further 12 months concurrent to count 1. The State submitted that prison discipline is not a conviction for the purposes of the autrefois convict principle, and that the sentence was neither harsh nor excessive nor disproportionately severe. The Court received affidavit evidence of reduction in prisoner privileges. The Court found that it unclear whether the prison discipline was for the same offence or whether it was for conduct arising out of the hostage situation. The Court discussed what is disproportionately severe treatment. It referred the Appellants to agencies where they could complain about treatment which could be out of proportion to events that occurred in prison.

Held–(1) The relevance of punishment under section 83 of the Prisons Act is to mitigate sentence. Prison discipline is not a criminal sentence but a disciplinary matter. It does not affect conviction. The magistrates' court had powers to deal with conviction, there being no double jeopardy and no breach of the Constitution s28.

(2) The test for ‘disproportionately severe’ punishment is whether it outrages public opinion or that is startlingly inappropriate for the offending, or that is excessively severe. Sentences of 12 months are not disproportionately severe where the maximum term is 10 years, where the offenders took advantage of a politically unstable period in Fiji’s history, added to an already volatile national situation, and caused fear not only amongst prison officers but also the general population.

Both Appellants’ 12 month consecutive sentence on count 1 and A2’s 12 month concurrent sentence on count 2 affirmed.

[note: for A1’s Court of Appeal Judgment, see (No. 2) reported in this volume. The prisons Act has been repealed and replaced by the Prisons and Corrections Act 2006 2/06].

Cases referred to in Judgment
Connelly v DPP (1964) AC 1254
Furman v Georgia [1972] USSC 170; (1972) 408 US 238
Lewis v Mogan (1943) 1 KB 377
The Queen v White ex parte Byrnes [1963] HCA 58; (1963) 109 CLR 665
R v Smith (1987) SCR 1045
Reg v Hogan (1960) 3 WLR 426
S v Vries (1996) 12 BCLR 1666
Sudi Yaku v Commissioner of Police Ex Parte The State (1980) PNGLR 27
Taito Rarasea v State (2000) 2 FLR 27

Appellants in person
Josaia Naigulevu with S Bavou for the Respondent

6 August, 2001

JUDGMENT

Shameem, J
This is an appeal by the two Appellants against their sentences of 12 months imprisonment each, in the Suva Magistrates' Court on 11th May 2001, for the offences of Wrongful Confinement and Criminal Intimidation. The charges read as follows:

FIRST COUNT

Statement of Offence

WRONGFUL CONFINEMENT: Contrary to Section 253 of the Penal Code, Cap. 17.

Particulars of Offence

NASONI TAMANI, SERUPEPELI CEREVAKAWALU, OSEA BALEASAVU and others, between the 12th day of July 2000 and the 13th day of July 2000, at the Medium Security Prison, Naboro in the Central Division, knowingly and wilfully confined ASP KORESI RAYAWA, PPO TEVITA KOROITAMANA, ACTING PPO SOLOMONE TUINASAU, SGT 764 INOSI TOGA, SGT 775 VENAISI BULI, POC 745 NEORI RACULE, POC 943 JOSAIA QEREQERETABUA, POC 933 JONE WAQALEVU, POC 1029 TANIELA RARARUA, POC 950 SHALENDRA SHARMA s/o Mahen Prasad, POC 890 JAGDISH SINGH s/o Prem Singh and POC 1110 SAULA SAUMAKA.

SECOND COUNT

Statement of Offence

CRIMINAL INTIMIDATION: Contrary to Section 330(b) of the Penal Code, Cap. 17.

Particulars of Offence

SERUPEPELI CEREVAKAWALU and others, between the 12th day of July 2000 and the 13th day of July 2000 at the Medium Security Prison, Naboro in the Central Division, without lawful excuse directly and knowingly threatened ASP KORESI RAYAWA, PPO TEVITA KOROITAMANA, ACTING PPO SOLOMONE TUINASAU, SGT. 764 INOSI TOGA, SGT. 775 VENAISI BULI, POC 745 NEORI RACULE, POC 943 JOSAIA QEREQERETABUA, POC 933 JONE WAQALEVU, POC 029 TANIELA RARARUA, POC 950 SHALENDRA SHARMA s/o Mahen Prasad, POC 890 JAGDISH SINGH s/o Prem Singh and POC 1110 SAULA SAUMAKA collectively of injury to the said persons with intent to cause alarm to those persons.

They now appeal against their sentences. Their grounds are similar and may be summarised as follows:

'1. That the learned Magistrate failed to take into account the incidents of prison discipline already imposed on the Appellants;

2. That the Appellants have been punished twice for the same offence; and

3. That their sentence was "disproportionately severe treatment" under section 25(1) of the Constitution.'

At the hearing in the Magistrates' Court, the prosecution, in outlining facts, said that both Appellants had been serving prisoners at the Naboro Medium Security Prison on 12th July 2000. On that day, at about 1.30pm they with other prisoners forcefully took over the prison and took twelve prison officers captive. They were armed with knives, iron rods, sticks and forks. They threatened and abused the prison officers, until the prison complex was stormed by the police and the Prisons Emergency Unit on the 13th of July 2000. These were the facts relevant to Count One.

On Count Two the prosecution said that the second Appellant, threatened to injure the prison officers, held hostage in respect of Count One. The 1st Appellant was not charged with Criminal Intimidation.

Both Appellants admitted their considerable number of previous convictions. The 1st Appellant told the learned Magistrate:

"Already sentenced in prison under the Prison Act. This is punishment enough. One cannot be punished twice for the same offence."

The 2nd Appellant said:

"Ask for mitigation before the Chief Magistrate. Same as Accused 2. Ask for time to put the mitigation in writing."

The learned Magistrate adjourned for sentence. In his sentencing remarks he said that the offences had been committed when the State was trying its best to control law and order after the May 19th crisis. He sentenced the Appellants to a 12 month term of imprisonment consecutive to the term they were currently serving, and a further 12 months imprisonment for Accused 2 on Count 2 to be served concurrently with the sentence on Count 1.

The Appeal
When this appeal was first called for hearing, counsel for the State, sought and received leave to file an affidavit on behalf of the Prisons Department explaining the circumstances of the prison discipline sentenced.

On 20th July 2001 the State filed the affidavit of Sikeli Tamani, Officer in Charge of the Naboro Maximum Prison Complex. He said that on the 15th of August 2000, the two Appellants were transferred to the Naboro Maximum Security Complex "as a result of their involvement in the Medium Security Complex takeover and the wrongful confinement of the Medium Security Complex Wardens in July 2000." He said they were also transferred for the security and safety of the prison officers and prisoners at the Medium Security Complex.

Additionally, he states at Paragraph 8 of his affidavit, that "the Naboro Stage Promotion Restoration Board reviewed the Appellants' records and reduced their privileges to the First Stage Category by virtue of section 83(1) of the Prison Act Regulations Cap 86 Laws of Fiji." He further states that the Appellants continued to receive all other normal privileges including exercise, visits, sleeping times and approved items.

In their submissions the Appellants disputed the effect of the prison discipline inflicted, saying that they had visitation rights reduced, sleeping times reduced and exercise rights varied.

The Director of Public Prosecutions opposed the appeal, saying that prison discipline was not a "conviction" for the purposes of the autrefois convict principle, and that the sentence was neither harsh nor excessive nor "disproportionately severe."

The Grounds of Appeal
The first ground of appeal is that the learned Magistrate had failed to take into account the fact that the Appellants had already been disciplined by the Prison Service. It is not in dispute that the Appellants were disciplined for their role in the prison hostage crisis. Nor is it in dispute that the discipline was imposed before they were sentenced by the Magistrates' Court.

Section 82 of the Prisons Act provides:

"Any prisoner who commits any prison offence as may be prescribed under the provisions of this Act shall be guilty of a prison offence and shall be liable to suffer punishment in accordance with the provisions of this Act:

Provided that –

(a) nothing in this connection shall be construed to exempt any prisoner from being proceeded against for any offence for any other process of law;

(b) save as expressly provided by the provisions of this Act, no prisoner shall be punished twice for the same offence."

Section 83 of the Prisons Act allows the Controller of Prisons and/or a Supervisor to impose punishments for the trial of prison offences. These punishments include forfeiture of remission of sentence, deprivation of earnings, and forfeiture of privileges. It also includes a power to reduce a prisoner's diet.

Section 82 of the Prisons Act expressly allows a criminal court to deal with a prisoner, after he has been disciplined under section 83 of the Act. The relevance of the punishment under the Prisons Act, is that it may mitigate sentence.

In this case, there is no dispute that the learned Magistrate was told of the prison discipline. Not only was he told of it in the course of the hearing but the 2nd Appellant in his submissions on appeal said that the learned Magistrate had visited the prison as a visiting justice, and was fully aware of the detail of such discipline because he had been briefed on his visit.

Although he did not refer specifically to the previous punishment, it is apparent from the learned Magistrate's sentencing remarks, that he considered the offences to be grave and deserving of an additional term of imprisonment. Given the maximum statutory term of the offences, the 12 months imposed on each count was hardly excessive. This ground is therefore dismissed.

The second ground of appeal is that the Appellants have been punished twice for the same offence. It is unfortunate that the affidavit of Sikeli Tamani, fails to set out the exact nature of the offences charged and the exact nature of the discipline imposed. It is therefore unclear what offences were charged, and in what way they were similar to the criminal charges.

However, as the Director of Public Prosecutions submitted, the imposing of prison discipline is not a "criminal sentence", it is a disciplinary matter. He referred me to the case of Reg v Hogan (1960) 3 WLR 426, a decision of the English Court of Criminal Appeal. In that case, the Appellants were convicted of aiding a prisoner to escape and resisting a peace office. They were sentenced to two years imprisonment on each count. Counsel for the Appellants, before sentence, had informed the sentencing judge that the Appellants had already been dealt with by the Prison Rules. They had forfeited all privileges for 28 days, forfeited earnings for 28 days, forfeited associated work and were confined to their cells for 15 days. The judge then proceeded on the count of escaping but struck out a count of simple escape. The Appellants appealed. The Court of Criminal Appeal said at page 429 (per Lord Parker CJ):

"It so happens that the offence created under the Prison Rules, an offence against discipline, is in fact the same as the common law offence of escape, but the visiting committee dealt with the matter as an offence against discipline under the Prison Rules. They have not dealt with the common law offence of simple escape. It follows, therefore in our judgment, that, strictly, Hilbery J need not have struck out the first count as to simple escape, though clearly it was the sensible thing to do, because if convicted of simple escape alone the judge, in deciding upon the sentence would have to take into consideration what had already happened as a matter of prison discipline."

The Court went on to say that a prisoner can be charged both with the common law offence of simple escape and with the same offences under the Prison Rules, saying:

"The truth of the matter is that the visiting Committee are dealing with matters of internal discipline with which this court is in no way concerned."

This, of course makes good sense. The prison rules are there to ensure the maintenance of an orderly prison. They do not create criminal offences, they create disciplinary offences. These are matters relevant for sentence. They do not affect conviction.

In Sudi Yaku v Commissioner of Police Ex Parte The State (1980) PNGLR 27 Andrew J considered the principle of autrefois convict in relation to police disciplinary charges, and criminal charges for the same conduct. His Lordship said (at p.30):

"In my opinion a criminal conviction does not, in the absence of any statutory provision, bar subsequent disciplinary action. Any other result would be absurd. How could it be said that a public servant found guilty of stealing monies from the public service could not then be dismissed? It is clear law today that a professional body has the right to suspend or expel a member following a conviction in a criminal court."

In The Queen v White ex parte Byrnes [1963] HCA 58; (1963) 109 CLR 665, the High Court of Australia said that an offence under the Public Service Act was not a criminal offence, but was a disciplinary matter before an administrative tribunal.

In Taito Rarasea v The State Criminal Appeal No. HAA 0027 OF 2000, Madraiwiwi J considered whether a reduction of rations and the extension of a prison sentence by the Commissioner of Prisons, for the prison offence of escaping was a breach of section 25(1) of the Constitution and section 28(1)(k) of the Constitution. The former section protects the freedom from inhuman, degrading, or disproportionately severe treatment, the latter protects the right not to be tried twice for the same offence. He found that the reduction of rations was degrading and inhuman, and that the extending of his prison term by the number of days he had been at large, the prisoner had been punished twice for the same offence.

His Lordship based his decision on the fact that, in his view, the prisoner was punished twice for the same conduct, because his sentence had, in effect, been lengthened by the Commissioner of Prisons. That case is of course, quite different from this one. There is no extension of the prison term nor a reduction of rations.

Section 28(1)(k) provides:

"Every person charged with an offence has the right:

(k) not to be tried again for an offence of which he or she has previously been convicted or acquitted."

The word "convicted" has been interpreted as meaning convicted by a court of competent jurisdiction. (Connelly v DPP (1964) AC 1254, Lewis v Mogan (1943) 1 KB 377). A "conviction" is not one imposed by a domestic or internal tribunal. Thus an employee can be dismissed by a disciplinary tribunal, and prosecuted for the same conduct.

I find therefore that where a criminal charge is laid in respect of conduct which has already been the subject of a prison disciplinary charge, the court can still proceed to try the criminal offence. The discipline imposed is however to be taken into account for the purpose of sentence.

In this case it is not clear whether the Appellants were disciplined for the same conduct, or whether it was for conduct arising from the hostage situation. However, whichever is the case, the Magistrates' Court had powers to deal with the criminal charge. There was no double jeopardy, and no breach of section 28 of the Constitution. This ground is dismissed.

The third ground raises the question of what is disproportionately severe punishment. The test for "disproportionately severe" punishment, is whether it outrages public opinion, or that it is startlingly inappropriate for the offending, or that it is excessively severe. These are the tests developed in other jurisdictions with comparable constitutional provisions (see R v Smith (1987) SCR 1045, Furman v Georgia [1972] USSC 170; (1972) 408 US 238 and S v Vries (1996) 12 BCLR 1666). It is not suggested that the Penal Code offences and punishments, offend section 25(1) of the Constitution in principle, only that the sentences passed on these offenders, were disproportionately severe to the offending.

The maximum term for an offence of Wrongful Confinement is ten years imprisonment. The maximum term for Criminal Intimidation is ten years imprisonment in a case where there is threat to cause injury. The offending in this case took advantage of a politically unstable period in Fiji's history. It added to an already volatile national situation, and must have caused fear not only amongst the prison officers who were victims, but also in the general population.

In the circumstances I see nothing disproportionately severe in the sentence of 12 months imposed on the Appellants. Had they not been disciplined for the incident in prison, no doubt both would have received a considerably longer term.

This ground is also dismissed.

Conclusion

This appeal is unsuccessful for the reasons I have given. However, before I conclude this judgment, I consider it a matter of some concern that the Appellants appear to have a real sense of grievance about the way they were treated after the hostage crisis. The 1st Appellant says that he lost his eye as a result of assault on him.

The Director of Public Prosecutions assured me that if they were to complain to him or to the police about their alleged assaults, their complaints would be investigated. It is also open to the Appellants to make a complaint with the Human Rights Commission. Whatever the circumstances might be, a full and fair investigation would go a long way to address what I detect to be, a feeling that both Appellants share, that the system has treated them unfairly, and out of proportion to the events that occurred in the prisons.

Appeal fails.

Marie Chan