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Kanaenabogi v State [2000] FJHC 164; Criminal Appeal 40 of 2000 (23 June 2000)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 40 OF 2000
(Suva Mag. Ct. Case No. Tr. 14491/98)

Between:

VILIAME KURUYAWA KANAENABOGI
Appellant

And

THE STATE
Respondent

Appellant in Person
Ms. R. Senikuraciri for the State

JUDGMENT

On 6 March 2000 the appellant was convicted and sentenced to imprisonment for 4 months on each of the three counts, namely, unlawful use of motor vehicle contrary to s262 of the Penal Code, driving motor vehicle without a driving licence contrary to sections 23(1) and 85 of the Traffic Act Cap. 176 and driving motor vehicle in contravention of third party policy risk contrary to section 4(1)(2) of the Motor Vehicle (Third Party Insurance) Act Cap. 177. Sentence in count 1 is consecutive and counts 2 and 3 is to be served concurrent to his present term and to Count 1.

The appeal is against sentence. The appellant submits that he would ask that the four months’ consecutive sentence be made concurrent.

The appellant is a 21 year old single man. He is serving a long sentence and is likely to be released in the year 2008.

The facts are that on 16 October 1998 at 6.00 p.m. the complainant after parking his car Regd. No. E4878 at Suva Car Park in Stinson Parade found it missing when he returned. The vehicle was found abandoned at Rewa Street after it was used in a robbery with violence case in which the appellant was involved and for which he is serving a long sentence.

The learned Counsel for the State opposed the appeal and stated that the sentences are correct and are not manifestly excessive. Counsel when asked about the sentence in the second Count, conceded that that sentence is not proper. She said that the first count carries a maximum sentence of 6 months or $100 fine or both, the second count a fine not exceeding $50 and the third Count fine not exceeding $400 or imprisonment not exceeding one year or both fine and imprisonment.

This appeal raises the point whether proper sentences have been passed on the appellant or not. There is nothing wrong with the sentence on Count one. As for Count two there is no provision for imprisonment. He should have been given a fine not exceeding $50. The sentence in the third count is proper; and although a mandatory disqualification is provided for, the Magistrate did not deal with this aspect possibly for the reason that he is serving a long sentence and it will have no meaning.

In these circumstances I shall vary the sentence in the second count by setting aside the sentence of 4 months’ imprisonment and substituting it with a fine of $25 in default six weeks’ imprisonment; and the sentences of 4 months in the first and third counts shall stand and are to be served concurrent to the sentence the appellant is at present serving.

The appeal is allowed to that extent.

D. Pathik
Judge

At Suva
23 June 2000