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Gonemaituba v State [2007] FJCA 28; AAU0007.2007 & AAU0066.2006 (25 June 2007)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL NO. AAU0007 of 2007 & AAU0066 of 2006
(High Court Criminal Case No. HAA 82 of 2006 & HAA 121 of 2006)

BETWEEN:

1. PENI GONEMAITUBA
2. JOSEFA RAVULA
Appellants

AND:

THE STATE
Respondent

Coram: Ward, President
Ellis, JA
Penlington, JA

Counsel:
Appellants in Person
W Kurusiqila for respondent

Hearing: Friday 15th June 2007
Date of Judgment: Monday 25 June 2007

JUDGMENT OF THE COURT

[1] The appellants were part of a group of eight serving prisoners who escaped from Korovou Gaol on 9 May 2006. These two appellants were recaptured on the same day in different places. They appeared in the Magistrates’ Court on 11 May 2006, pleaded guilty and were sentenced to 12 months imprisonment consecutive to the terms they were serving at the time. Both appealed to the High Court against sentence but the appeals were heard on different days and, as it happened, by different judges.

[2] The second appellant appeared before Gates J on 21 September 2006 and his appeal was dismissed. The first appellant appeared before Shameem J on 15 December 2006. His sentence was reduced to six months imprisonment. Both appellants had previous convictions but they were not such as to lead to any differentiation in the sentences.

[3] Both appellants were also charged with equivalent prison offences and, by the time of the High Court hearings, had each been sentenced to loss of two months remission. Gates J mentioned that penalty in his judgment and we assume Shameem J would have been similarly informed.

[4] The first appellant has been given leave to appeal on the ground of disparity with his co-appellant and both have leave on the ground that the punishment for the prison offence amounted to a second penalty.

[5] Mr Kurusiqila, for the respondent, concedes that on both grounds the appeal must succeed. In the case of the second appellant, it is clear that the penalties passed on him and on the others who escaped at the same time should have been the same. The sentencing court did not attempt to distinguish between them on the facts and the amount of reduction of the sentence on the second appellant should be determined by that of the first.

[6] The appeal on that ground is allowed and the sentence against Ravula is reduced to six months imprisonment.

[7] Since the High Court heard these appeals, this Court has had an opportunity to consider the possibility of double jeopardy where the same incident incurs penalties under different provisions of the law. In Joeli Tawatatau v The State [2007] Crim Appeal AAU 2/07, 23 March 2007, the Court found that, where the same facts constitute the offence of escape under both the Penal Code and the Prison Regulations, the prisoner is only liable to be sentenced once.

[8] In Tawatatau’s case, the appellant had been punished by the prison authorities before he appeared in the Magistrates’ Court and he was further sentenced to imprisonment by the magistrate. The appeal to the High Court had been on the ground that the magistrate was unaware of the prior punishment under the Prison Regulations. The High Court judge considered that, had the magistrate been advised of it, he would have made allowance for it.

[9] This Court found that the two punishments were for the same offence even though they had been ordered under different laws and breached the protection against double punishment given by section 20 of the Penal Code at paragraph 41:

"The punishment imposed by the Magistrates’ Court was imposed for the same offence, albeit under section 138 [of the Penal Code], as that ordered by the prison tribunal. It was therefore in breach of section 20 of the Penal Code and must be quashed."

[10] In the present case, the sentence by the Magistrates’ Court was imposed prior to the decision of the prison tribunal. However, the Court in Tawatatau’s case relevantly concluded:

"44. In future, once an escaper is charged in the Magistrates’ Court under section 138 of the Penal Code, no charge of escape under the Prison Regulations should be brought until the result of the Magistrates’ Court hearing is known. If the prisoner is punished by the magistrate, no further charge of escape should be brought under the Regulations.

45. Similarly, a magistrate dealing with a charge of escape by a serving prisoner should ascertain, before a plea is taken, whether a prison tribunal has already imposed any punishment for escape. If it has, he should invite the prosecution to withdraw the charge."
    

[11] As we have stated, the decision in Tawatatau was after the events to which this appeal relates had taken place. The penalty under the regulations has now been passed and this Court has no power to alter it. However, on the same principle as was stated in Tawatatau’s case, we can remedy the position by reducing the magistrate’s sentence of six months by the period of remission forfeited leaving four months imprisonment consecutive to any sentence the appellant is currently serving.

[12] We would finally point out that the papers before the Court do not state the exact prison offences for which the loss of remission was passed. However, we note the concession by counsel for the respondent and assume, therefore, that they were imposed for the offence of escape. In any future appeal on this ground, the Court should be supplied with evidence of the exact prison offences and the penalties imposed.

[13] Result: Both appeals against sentence allowed.

The penalty ordered by the High Court in each case is quashed and replaced by a sentence of four months imprisonment consecutive to any sentence the appellant is serving at present.

Ward, President
Ellis, JA
Penlington, JA

Solicitors:
Appellants in person
Office of the Director of the Public Prosecutions, Suva for the Respondent