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Donu v State [2001] FJHC 207; HAA043.2001S (4 July 2001)

IN THE HIGH COURT OF FIJI AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 043 OF 2001S

BETWEEN:

JEREMAIA DONU; and
ILIKENA BULA
Appellants

AND:

THE STATE
Respondent

Appellants in Person
Mr W. Kurisaqila for Respondent

Hearing: 27th June 2001
Judgment: 4th July 2001

JUDGMENT

The two Appellants were found guilty after trial, on the 20th of April 2001 of the following offence:

Statement of Offence

ESCAPING FROM LAWFUL CUSTODY: contrary to section 138 of the Penal Code, Act 17.

Particulars of Offence

JEREMAIA DONU, JIMILAI TATAU, ILIKENA BULA and SIKELI SOWANE, on the 12th day of July 2000 at Lami in the Central Division, being in the lawful custody of Superintendent Peniame Salacakau, escaped from such custody.

They were acquitted on a second count of Unlawful Assembly.

The Appellants now appeal against their convictions. Their grounds of appeal are similar and can be summarised as follows:

1. The Learned Magistrate erred in failing to consider whether the Appellants had acted voluntarily or under duress when they escaped from prison;
   
2. The Learned Magistrate should have considered evidence that an inmate had been killed, and 21 others wounded when the prison officers and army officers stormed the Naboro Prison after several prison officers had been taken hostage by some prisoners;
   
3. The Learned Magistrate denied the Appellants their right to call witnesses.
   

At the hearing of the appeal, both Appellants also added an appeal against sentence. The 1st Appellant said that he now has a term of 11 years to serve, which he said was excessive. The 2nd Appellant said that a sentence of 9 months imprisonment was excessive, and that other prisoners involved in the same incident, had received a considerably shorter term.

The facts of this case, as led in evidence at the trial, are that on 12th of July 2000, Superintendent Peniame Salacakau was in charge of the Naboro Prison. On that day ASP Koresi Rayawa was taken hostage at the Medium Security Prison with 12 of his men, by the prisoners. SP Salacakau then took charge of the prison. He was able to free ASP Rayawa and his men, and counted all the prisoners. He found 12 prisoners (including the two Appellants) missing. He informed the Police and took part in a search for the prisoners. Under cross-examination by the 1st and 3rd accused (the two Appellants) SP Salacakau said that during the storming of the prison complex, some force was used to free the hostages, which had resulted in the death of one inmate. He said that because of the situation the prisoners had been able to escape. He said the officers storming the prison were armed with gas.

The evidence led from Corporal 2210 Jale of the Lami Police Station was that the Appellants were arrested on the 13th of July 2000, by the military at the Kalabu Primary School. They were brought to Lami Police Station, where they were interviewed under caution. Under caution, the 1st Appellant denied that he had escaped intentionally, but said that he had left the prison to escape from the tear gas. He said he had followed the forest to Kalabu Village. The 2nd Appellant said under caution that he had escaped because “of the gas and gun shots fired that made me fear for my life.” He said he went to Kalabu because he had heard that Speight’s men were there. He said he was arrested by the military.

The Appellants both elected to make unsworn statements. The 1st Appellant said:

“What I did was not intentional. If I had the guts to escape when we were loose, I would escape then.”

The 2nd Appellant said - “As in Archbald 36th Edition paragraph 3421 Section 1 and Chapter 14 Section 2 3434.”

The 36th edition of Archbald is not retained in the High Court Library. However the 39th Edition, at paragraph 3421 defines “Escape” as “escape without the use of force from lawful custody on a criminal charge, whether the escape is effected by artifice or in consequence of neglect in the custodian and whether it is made from gaol or in transit thereto.”

That reference is to the common law offence in England. It is replaced in Fiji by section 138 of the Penal Code.

In his judgment the learned Magistrate said as follows:

“On Count one, the evidence of PW1 is believed by the Court that these four persons escaped from lawful custody on 12/7/2000. The reason being that, when the head count was done at about 10.00pm that night, these four were not in prison. They were at large till they were arrested by the army and taken to Lami Police Station on 31/07/2000. If not, all accused intended to escape for all time. I therefore reject the statements of accuseds 1 and 2 that they had no intention of escaping. Again the reason was that they did not go back to prison voluntarily.”

It is apparent from the Judgment that the Learned Magistrate considered the Appellant’s defence of duress, and rejected it on the facts. He simply did not believe the Appellants. This was a finding of fact he was entitled to make. Grounds 1 and 2 of the grounds of appeal simply raise the same defence on appeal. It would be exceptional for an appellate court to interfere with a finding of fact in the court of first instance. I decline to do so. Grounds 1 and 2 are therefore dismissed.

Ground 3 alleges a failure to tell the Appellants that they had a right to call witnesses. However, the court record states otherwise. The record shows that the Learned Magistrate put all the options to the Appellants after the close of the prosecution case. This ground is also dismissed.

Sentence

The Appellants were sentenced to 9 months imprisonment each. In Isireli Rokovucago -v- Reg Crim. App. No. 22 of 1980, the Honourable Chief Justice said:

“Returning to the question of sentences for the offence of escaping from lawful custody I would agree that these should not appear to be so disparate as between cases. I think what the Courts should try to do is to achieve some sort of consistency or uniformity between the sentences imposed for this offence. This is not easy to do if one is continually confronted with this type of case when the Courts may feel it their duty to be severe with the culprits. However such temptation should be resisted. I believe some semblance of uniformity in the sentences should be achieved if in passing sentence the Courts keep within a certain acceptable range. I do not think anything would be lost in the way of deterrence against this offence if this range is fixed between six and twelve months imprisonment depending of course, on the particular circumstances of the case. In this way there would not be so much disparity of the appearance of disparity in the sentences passed by different Courts. Anything above or below this scale should be regarded as exceptional and can only be justified by its own particular circumstances.”

Of course, having passed a sentence within the scale, the sentencer should consider the totality principle, to see whether the total term to be served is disproportionate to the offending.

In the 1st Appellant’s case, he has a total of 11 years to serve for a number of offences, including Robbery with Violence. He has been sentenced to 3 years imprisonment for wrongfully confining the prison officers at the Naboro prison complex on the 12th of July 2000. In the circumstances the additional 9 months imprisonment does not render the total term disproportionate.

The 2nd Appellant (who was not convicted of Wrongful Confinement) has been serving an 8 year term for Robbery with Violence, and was due for release this year. The additional 9 months has not rendered his total term disproportionate.

The sentence of 9 months imprisonment for each Appellant was therefore neither wrong in principle, nor manifestly excessive. The appeal against sentence is also dismissed.

Summary

This appeal is dismissed on all grounds.

Nazhat Shameem
JUDGE

At Suva
4th July 2001