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Supreme Court of Fiji |
IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA
CRIMINAL APPEAL NO. CAV0007 OF 2008S
(Fiji Court of Appeal No. AAU0012 of 2007S)
BETWEEN:
PENIASI TIRIKULA
Petitioner
AND:
THE STATE
Respondent
Coram: The Hon Justice Keith Mason, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice Mark Weinberg, Judge of the Supreme Court
Hearing: Wednesday, 15th October 2008, Suva
Counsel: The Petitioner in Person
Mr P Bulabainivalu for the Respondent
Date of Judgment: Thursday, 16th October 2008, Suva
ORDER OF THE COURT
[1] Petition adjourned to next session of Supreme Court.
[2] Direct that within 60 days the State is to prepare file and serve a Supplementary Record of the Supreme Court containing all available records of the Magistrate’s Court and the High Court relating to the convictions on charges under s.26 of the Bail Act that are not part of the existing Record. If no such records are available the State is to file and serve a letter explaining the searches it has conducted and proposing what further steps should be taken in the petition.
[3] Within a further 60 days the petitioner is to file and serve additional grounds of appeal and submissions relating to any challenge he makes to the said convictions.
[4] The petitioner is released on bail immediately, subject to the conditions set out in the document attached to this Order.
[5] Liberty to apply to a Judge of the High Court to vary or revoke the conditions of bail.
The Hon Justice Keith Mason
Judge of the Supreme Court
The Hon Justice Kenneth Handley
Judge of the Supreme Court
The Hon Justice Mark Weinberg
Judge of the Supreme Court
Solicitors:
The Petitioner in Person
Office of the Director of Public Prosecutions, Suva for the Respondent
[1] The petitioner had a bad record of property offences.
[2] On 3 August 2005 he pleaded guilty in the Magistrates Court to three sets of additional offences. On 3 August 2005 the Magistrate sentenced him in one of the matters (1454/05) to one year imprisonment on each of two counts, the sentences to run concurrently with each other. The other three matters were stood over to 31 August 2005. On 31 August 2005 the other matters (2868/02 and 2869/02) were finalised with sentences of 4 years and 3 years imprisonment being imposed and ordered to run concurrently with each other.
[2] When sentencing in the matter for which 3 years imprisonment was imposed, the learned Magistrate observed that the petitioner had a poor record for Court attendance, which was to be reviewed separately pursuant to s.30(2) of the Bail Act 2002.
[3] On 22 September 2005 in each of three matters (2868/02, 2869/02 and 1808/03) the petitioner was convicted of "Forfeiture of Bail" and was sentenced to nine months imprisonment for each, to be served "consecutive to his current prison term." The gravamen of these offences was that the petitioner had failed to appear, when bailed to do so. There were numerous instances of this, as detailed in paras 4 and 9 of the reasons for judgment of the Court of Appeal dated 8 April 2008.
[4] The petitioner appealed the various sentences, initially to the High Court (Shameem J) and then to the Court of Appeal. There were various adjustments to the sentences including an adjustment to the sentences for the bail offences. In lieu of the Magistrate’s sentence of three consecutive terms of nine months imprisonment in each of three separate matters represented by three court files, the bail sentences were ordered to be served concurrently with each other because, in Shameem J’s words, "breach of bail occurred once and a bench warrant issued once."
[6] Shameem J nevertheless affirmed that part of the bail sentences that required them to be served consecutively upon the expiry of the sentences imposed for the substantive property offences.
[7] The Court of Appeal allowed an appeal from Shameem J, but only as regards an aspect of the sentences for the substantive offences. As regards the bail offences, the Court said (at [26]):
"In these proceedings the appellant did not advance the proposition that the 9 month sentence for the bail breaches should be serve concurrently with the other sentences and nor could he. Not only is it usual for bail offence sentences to be in addition to the sentences for the primary offence, the matter was not argued in the High Court and no error of law was made in not dealing with it."
[8] The petitioner’s complaint in this Court to the effect that there was an error in ordering the sentences in the bail offences to be served consecutively is without merit. There is no question of double jeopardy. The deterrent impact of a sentence for non-appearance would be entirely lost if concurrency were the norm or if the right to punish were withdrawn merely because the substantive offences have been dealt with.
[9] The petitioner is incorrect in suggesting that there is no point in imposing a penalty under s.26(2) if a person’s attendance is ultimately achieved.
[10] The petition should be dismissed.
The Hon Justice Keith Mason
Judge of the Supreme Court
The Hon Justice Kenneth Handley
Judge of the Supreme Court
The Hon Justice Mark Weinberg
Judge of the Supreme Court
Solicitors:
The Petitioner in Person
Office of the Director of Public Prosecutions, Suva for the Respondent
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URL: http://www.paclii.org/fj/cases/FJSC/2008/23.html