AJH v State [2008] FJSC 29; CAV0008.2008S; AAU0019.2005S (17 October 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0008 OF 2008S
(Fiji Court of Appeal No AAU0019 of 2005S)

BETWEEN:

A. J. H.
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
Ms A Driu for the Respondent

Date of Judgment: Friday, 17th October 2008, Suva

JUDGMENT OF THE COURT

[1] On 4 February 2005 the petitioner pleaded guilty before Govind J to 6 counts of rape of his elder daughter and 1 count of attempted rape of his younger daughter. He was sentenced to 10 years in imprisonment on counts 1 – 2, 9 years on counts 3 – 6, 7 years on count 7, all sentences to be served concurrently.

[2] His appeal to the Court of Appeal was allowed on 10 March 2006 and sentences of 7 years concurrent with effect from 4 February 2005 were substituted. The Court also extended indefinitely the suppression of 9 order made by the High Court.

[3] The petitioner was charged on 18 November 2002 with 10 offences in relation to his daughters, but on 19 November, in the Magistrates Court, he pleaded guilty to one charge of rape and two charges of indecent assault and elected trial in the High Court on the other charges. The Magistrate proceeded to sentence him on his pleas of guilty to 2 years imprisonment on the indecent assault charges and 3 years on the rape charge to be served concurrently.

[4] As the Court of Appeal said sentence on the guilty pleas should have been deferred until the conclusion of the trial in the High Court. All outstanding charges against the petitioner could then have been dealt with in the same Court, by the same Judge, and at the same time.

[5] The petitioner served the sentences imposed by the Magistrate, less the remission of one third under s.63 of the Prisons Act (Cap 86). Following his arraignment in the High Court on the remaining charges he was allowed bail on 9 December 2004 following his release after serving the sentences imposed by the Magistrate.

[6] On 2 February 2005 the petitioner pleaded guilty to the remaining charges and was sentenced on 4 February.

[7] Although the petitioner succeeded in having his effective sentence reduced by the Court of Appeal he applied for special leave to appeal to this Court in belief that, as a result of his split sentencing, he had lost most of the benefit of the one year remission from the 3 year sentence imposed by the Magistrate. He was only at liberty following his release from prison on 9 December 2004 until 2 February 2005.

[8] However, the Court Appeal allowed his appeal in order, as they explained in para [19] "to take into account the 3 year period already served by the appellant when he appeared in the High Court".

[9] It is clear therefore that the petitioner was given the full benefit of his one year remission. When he fully understood that he had been given the full benefit of the sentences imposed by the Magistrate, and not just the time he spent in full time custody, he effectively abandoned his petition. In any event the petition failed on its merits and is 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:

Petitioner in Person
Office of the Director of Public Prosecutions, Suva for the Respondent