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In re State v Lavetala [1989] FJHC 13; HAJ0002j.1989s (24 November 1989)

IN THE HIGH COURT OF FIJI
AT SUVA
Revisional Jurisdiction

REVIEW NO. 2 OF 1989

IN THE MATTER of Criminal Procedure Code S.323

AND IN THE MATTER of Suva Magistrates Court
Criminal Case No. 2257 of 1989:
State v. Vilimone Lavetala

Applicant in Person
Mr. J. Naigulevu for the State

JUDGMENT

This case was brought to the attention of the Court seeking an exercise of this court's revisional jurisdiction.

So far as relevant for our present purposes, Section 323 of the Criminal Procedure Code Cap. 21 empowers this court to "......... call for an examine the record of any criminal proceedings before any magistrate's court for the purpose of satisfying itself as to the correctness, legality or propriety of any ........ sentence passed....."

In my view the "correctness" or "propriety" of a sentence is a broader more relative criterion than say its 'legality' and although I am mindful of the provisions of Section 325(5), I am satisfied that this revision is not brought ".........at the instance of the party who could have appealed" and may therefore be entertained.

This case concerns a 17 year old Fijian youth who was charged with damaging a front shown glass window of the Hot Bread Kitchen Shop premises in the Nabua Shopping Centre. The window is valued at $400.

The accused was convicted on his guilty plea and sentenced to 9 months imprisonment. The 'legality' of that sentence cannot be doubt having regard to the maximum sentence of 2 years imprisonment provided by Section 324(1) of the Penal Code Cap. 17. Nor can it be doubted that the learned trial magistrate had the jurisdiction and power to impose it.

However whilst a sentence might be said to be "legal", it may not necessarily be 'correct' or 'proper' in all the circumstances of the case.

Here the accused was born on the 7th January 1972 and can barely be classed as an adult being 17 years 9 months at the time of the offence. It is significant that in respect of juveniles the legislature in its wisdom has seen fit to provide numerous non-custodial punishments with a view to keeping them out of prison. (See: Section 32 of the Juveniles Act Cap. 56.)

Even the Penal Code contains several non-custodial measures available for the punishment of first offenders. (See: Section 35 to 44 of the Penal Code.)

Our prisons are already too full of young Fijian men and this court has a duty to try and reverse that trend wherever it is possible and just.

The accused who was unrepresented at his trial pleaded guilty. He is not recorded as having said anything in mitigation nor does it appear to have been brought to the learned magistrate's attention that he was a first offender.

This court has stated on several occasions in the recent past that every effort must be made to keep young first offenders out of prison even I might add at the risk of appearing lenient.

The learned trial magistrate was not appraised of the character or home surroundings of the accused nor was a probation officer's report sought as might have been expected.

Indeed, the learned trial magistrate has very properly recorded in a "note" that if an offer to compensate the damage had been made he would have been disposed to impose a fine coupled with an order under Section 41 of the Penal Code binding the accused over to keep the peace and be of good behaviour.

Needless to say the offence of Damaging Property contrary to Section 324(1) of the Penal Code, with which the accused was charged, is an offence specifically enumerated in Section 163 of the Criminal Procedure Code as one in which a court may ".......promote reconciliation and encourage and facilitate the settlement in an amicable way of the proceedings, on terms of payment of compensation....... and may thereupon order the proceedings to be stayed or terminated".

There is nothing in the learned trial magistrate's record which could indicate that he had directed his mind to that provision or attempted any such reconciliation during the course of the trial nor were the circumstances of the case such as to preclude the applicability of the Section.

In all the circumstances and with the concurrence of learned counsel for the State I set aside the sentence passed by the learned trial magistrate in this case and in lieu thereof, the accused is bound over in the sum of $400 to keep the peace and be of good behaviour for a period of 24 months. The accused is to be released on entering into this bond.

(D.V. Fatiaki)
JUDGE

AT SUVA,
24th November, 1989.

HAJ0002J.89S