IN THE HIGH COURT OF FIJI
AT SUVA
Revisional Jurisdiction

REVIEW NO 3 OF 1989

Between:

IN THE MATTER of Criminal Procedure Code Section 323

AND IN THE MATTER of Suva
Magistrates Court Criminal Case No. 2349 of 1989:
State v. Sekove Roko

Defendant in person
Mr. S. Senaratne for the Director of Public Prosecutions

JUDGMENT

This case has come before the court at the request of the Chief Magistrate with a view to reviewing the sentence imposed on the defendant who was convicted by the Suva Magistrate Court on the 14th of November 1989 after he pleaded guilty to an offence of Damaging Property worth a total of $407.50.

The facts outlined by the police prosecutor tells of a gang fight involving 2 groups of boys which spilt into the complainant's compound. The defendant at the hearing of this review frankly admitted to damaging the front sliding glass door of the complainant's house and although he claims it was accidental I do not believe him.

As to this matter the defendant is recorded as having admitted the prosecutor's facts outlined to the learned trial magistrate which included the following extracts: 

"Accused was under the influence of liquor and informed to leave compound - he went to house and demanded to look into house - sliding door was closed - he fisted the glass which was damaged and broken pieces of glass got stuck to his hand."

There was nothing accidental in the damage caused to the glass which appears to have been caused as a result of the defendant's frustration at being refused ingress. Additionally, the defendant said during the hearing of the review that he was provoked and angered at having seen his brother assaulted.

I accept learned state counsel's view that the damage was not premeditated and might be attributed to the consumption of alcohol. Although of course drunkenness does not excuse such a wanton act of hooliganism.

The offence of Damaging Property is a reconcilable one and magistrates would do well to exhaust the provisions of Section 163 of the Criminal Procedure Code Cap. 21 before imposing an immediate custodial sentence especially in the case of a young first offender such as the defendant.

In sentencing the defendant the trial magistrate said inter alia:

"Considerable damage has been done to complainant's property - there is no hope of complainant being compensated."

It might be that in saying so the learned magistrate was considering only the employment status of the defendant and to that extent he was perfectly correct.

However I am informed by the Chief Magistrate who referred the case to this court that

"Relatives and friends of the accused collected money and $410.00 is now available to pay for the damage."

This court on its part will not let their genuine efforts amount to nought in the hope that the defendant will reward them by staying out of trouble in future.

The defendant has already spent 3 weeks in prison and hopefully he was learned a salutary lesson from that experience.

Nevertheless and in order to disabuse any thoughts he may have that he can "buy" his way out of a prison term merely by paying for the damage caused, the defendant will not be allowed to go "scot-free".

Accordingly in exercise of my powers of revision I quash the sentence passed by the learned trial magistrate and order that the defendant enter into his own recognizance in the sum of $100 with one surety in like amount on condition that he shall keep the peace and be of good behaviour for a period of 12 months.

For the sake of completeness in exercise of my powers under section 160(2) of the Criminal Procedure Code Cap. 21 I order the defendant to pay the complainant PENINA BALEICAKAU the sum of $410.00 by way of compensation for the damage caused to her house.

(D.V. Fatiaki)
JUDGE

Suva,
8th December, 1989.
HAJ0003J.89S