Rakaitava v Reginam [1977] FJSC 18; Criminal Appeal 101 of 1974 (1 April 1977)

Fiji Islands - Rakaitava v Reginam - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 101 OF 1974

:

FILIMONE RAKAITAVA

AND:

REGINAM

On the 5th April 1976 at Suva Magistratetrates Court the appellant with another (hereinafter called the co-accused convicted on four counts of assault occasioning actual bodily harm contrary to section 277n 277 of the Penal Code and was sentenced to imprisonment for a total of two years six months.

In November 1976 the appellant applied to Suva Magistrates Court for leave to appeal out of time and, his application having been granted, the appellant has appealed against sentence.

The offences of which the appellant was convicted arose from a brawl in which quite a large number of villagers wore involved, the appellant, the co-accused and others forming one faction and the complainant with others forming the other. The complainant's faction which got the worst of it was not without fault, although the preponderance of fault was on the side of the appellant's faction.

The trial Magistrate sentenced the co-accused to a total of eighteen months' imprisonment, which sentence expires on the 7th April 1977. But as the appellant had a bad record the trial Magistrate imposed the sentence the subject matter of this appeal.

At the some time the trial Magistrate very properly bound over each of the complainants in the sum of $100 to keep the peace and be of good behaviour under the powers conferred by subsection 2 of section 35 of the Penal Code. However he omitted to note that the subsection limits the period of a bind-over to one year and bound over the complainants for three years. So far as each bind-over purports to be for a period in excess of one year it is null and void, but otherwise it is valid and expires on the 5th April 1977 - virtually at the same time as the expiration of sentence imposed on the co-accused.

In all the circumstances I consider that the custodial sentence imposed on the appellant should be limited to the same period, and I accordingly quash the concurrent sentences of two years six months' imprisonment which were passed on the appellant in respect of counts 1 and 2 and substitute therefor concurrent sentences of eighteen months' imprisonment with effect from the 5th April 1974.

Clifford H. Grant
CHIEF JUSTICE

Suva,
1st April 1977.