| Fiji Islands - Siriva v The State - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 0008 OF 1996
Between:
SAILOSI SIRIVA
Appellant
AND:
STATE
Respondent
The Appellant in person
Mr. S. Karavaki for the State
JUDGMENT
(Reasons for Judgment)
On 28 March 1996 after hearing I allowed this Appeal and stated that I will give reasons later which I now do.
The facts are that on 3 July 1995 at Nausori Magistrate's Court the appellant was convicted on his own plea on three counts, namely,
first count, damaging property contrary to section 324(1) of the Penal Code, second count, assault occasioning actual bodily harm
contrary to section 245 of the Penal Code and third count, throwing object contrary to section 105 of the Penal Code.
The appellant was sentenced to imprisonment for 2 years, 2 years and 1 year respectively to run consecutively, constituting an overall
term of five years' imprisonment.
The appeal is against severity of sentence.
The appellant who is a 36 year old farmer said that he is married with three children and has a farm of his own. He repents for what
he has done and pleads for the reduction of his sentence.
The learned State Counsel said that the sentences were appropriate. He stated that the aggregate sentence of five years reflects the
"overall criminology of the three offences" although he agreed in answer to my question that the appellant should have been given concurrent sentences.
The maximum sentence for damaging property is 2 years, for assault occasioning actual bodily harm it is 5 years and for throwing object
it is 3 years.
The accused was given the maximum sentence on the first Count. The first and second counts arose one after the other whereas the third
count arose shortly after.
I find that there was no justification for the learned Magistrate to impose the maximum sentence on the first count. It certainly
was not the worst case of its kind to warrant that sentence. As for second count, the injuries were not such as to warrant a long
sentence of 2 years consecutive to the sentence in the first count. I find the sentence on the third count appropriate.
On the question of maximum penalty the principle to be followed is that it should be "reserved for the worst possible example of the offence concerned". (THOMAS: PRINCIPLES OF SENTENCING 2nd Ed. p. 31). To give an example, in SMITH (1975) Crim. L.R 468 where the maximum term was imposed, the Court considered "that this sentence was not justified, as 'though they were serious offences'
it was easy to imagine more serious examples, .... it is only in case of real gravity within the class that it is justifiable to impose
the maximum sentence allowed by law'. This principle does not mean that the maximum term must never be imposed ....." (THOMAS ibid). Having pleaded guilty the appellant is entitled to some reduction below the maximum sentence (R v BARNES (1983) 5 Cr. App. R.(S) 368).
Apart from imposing the maximum sentence the learned Magistrate made it consecutive to the sentence in the second count. This produced
an overall sentence which was unduly harsh and excessive although I do not disagree with the sentiments expressed by the learned
Magistrate when sentencing the Appellant.
The power to order sentences to run consecutively is subject to two major limiting principles, which may be called the "one-transaction rule" and the "totality principle". (THOMAS: ibid p.53). It should not be taken to mean that consecutive sentences cannot be imposed so long as the overall sentence is not unduly
harsh and by the same token the outcome of the concurrent sentences are not rendered unduly lenient in view of aggravating features.
For the above reasons I found that the sentences in Counts 1 and 2 were longer than were justified in the circumstances of this case.
They were wrong in principle and manifestly excessive.
I therefore quashed the sentence imposed by the lower Court on counts one and two and in substitution therefor I imposed the following
terms of imprisonment:
Count 1 18 months' imprisonment
Count 2 9 months' imprisonment
I ordered these sentences to run concurrently but the sentence of 12 months' imprisonment in the third count which was not disturbed
is to be consecutive to the said first two counts constituting an overall term of 2 1/2 years' imprisonment.
The appeal was allowed.
D. Pathik
JUDGE
At Suva
1 May 1996
Haa0008j.96s
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