Baleasavu v Reginam [1979] FJSC 16; Criminal Appeal 46 of 1979 (26 July 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
Appellate Jurisdiction

Criminal Appeal No. 46 of 1979

BETWEEN

OSEA BALEASAVU
Appellant

AND

REGINAM
Respondent

Appellant appeared in person
Mr. D. Williams, Counsel for the Respondent

REASONS

The appellant pleaded guilty to the offence of demanding with menaces contrary to section 328 of the Penal Code and admitted the truth of the outline of facts as stated by the prosecution. On that basis the magistrate convicted him of the offence charged and sentenced him to 12 months imprisonment. However the facts stated do not support the offence charged. On those facts there was undoubtedly an assault on the complainant, but this seems to have been more in anger after the complainant had declined to give the accused a cigarette or 50 cents.

There was no suggestion that the request for a cigarette or the 50 cents was supported by a threat of violence or actual violence. The violence came after the request.

It may be that the outline of facts is not complete, but the magistrate should have asked for further clarification or should have treated the matter as on a plea of not guilty. It is not open to this court to substitute conviction for another or a lesser offence (for the elements of the offence charged do not contain elements of a suitable lesser offence).

The appellant merely appealed against the sentence passed on him, but there is no merit in that appeal.

The appellant has a bad record and the sentence passed on him was by no means excessive. However, for the reasons I have stated above I set aside the conviction and sentence passed by the magistrate, and send the case back to him to proceed on the basis that there was a plea of Not Guilty.

The appellant is currently serving a prison sentence for another offence so that he will of course remain in custody.

Sgd. (G.O.L. Dyke)
JUDGE

LAUTOKA
26 July, 1979