Vakacegu v Reginam [1977] FJSC 175; Criminal Appeal 103.1976 (1 January 1977)

IN THE SUPREME COURT OF FIJI
(APPELLATE JURISDICTION)

Criminal Appeal No. 103 o f 1976

BETWEEN:

TURAGA VAKACEGU

AND:

REGINAM

JUDGMENT

On the 9th November 1976 at Lakeba Magistrates Court the appellant, a juvenile aged twelve years, pleaded guilty to the larceny of five coconuts from a plantation and the trial Magistrate made a care order under the provisions of section 32(1)(e) of the Juveniles Act 1973 in respect of the appellant. Against that order the appellant appeals.

On the 29th October 1976 the trial Magistrate had dealt with three other young boys who had participated in this offence, and had treated it quite rightly as a childish prank. He ordered each of them to enter into a recognisance in the sum of $25 to be of good behaviour for a period of twelve months, but I fail to see how the penalty is to be recovered from a juvenile if there is a breach of the recognisance, and I do not consider this to be a proper order to make in the case of a juvenile. It is apparent from section 43(1)(c) of the Criminal Procedure Code that in the case of a recognisance it should be entered into only by sureties other than the juvenile; and it is clear from section 32 of the Juveniles Act 1973, which makes no provision for a juvenile offender to give security for his good behaviour but under paragraph (d) makes specific provision for the parent or guardian to give security for the good behaviour of the juvenile offender, what the type of order made by the trial Magistrate is not contemplated. However, although I consider the orders made in respect of the three accused on the 29th October are enforceable, I do not consider it necessary to upset the orders.

With regard to the appellant, he failed to appear with his co-accused on the 29th October, in breach of a bail recognisance, but appeared on the 9th November although his mother did not. The trial Magistrate took the view from the appellant's failure to appear on due date and, perhaps, from the apparent lack of concern of his mother, that a care order would be in his best interests.

Before any Court makes a care order in respect of a young boy of previous good character who has committed only a minor offence, it should pause long; as it is almost inevitable that the boy will be committed to Nasinu Boys Centre (formerly known as Nasinu Approved School) where he will come into contact with older and more experienced boys; and in the absence of exceptional circumstances the Court should not do so without the benefit of a probation report.

I appreciate that when sitting in the outer islands there are difficulties of a practical nature, but these are not insurmountable. For instance, if there are circumstances which lead the trial Magistrate to believe that a care order may be the appropriate course of action, he can either adjourn the case to the next sitting at that venue, release the accused on bail, and call for a probation officer's report to be submitted; or he can remand the juvenile in custody (which would be at Nasinu Boys Centre), arrange for a probation report to be submitted within a short time and call the case on for sentence at Suva Magistrates Court where he can dispose of it.

This Court has had the advantage of a most detailed and comprehensive probation report which shows quite clearly that a care order is not justified in the circumstances of this case, that there are acceptable reasons for the appellant having failed to appear at Court on the first occasion and for his mother failing to attend, that he is not in need of care and control and that it would most certainly not be in his best interests to be committed to Nasinu Boys Centre.

He is accordingly discharged, and I require the Probation Department to ensure that he is returned to his home at the earliest available opportunity and to undertake his welfare until that time. A passage order is to issue to cover the cost of his return to Lakeba.

(CLIFFORD H. GRANT)
CHIEF JUSTICE

Suva
1st January, 1977