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Sami v The State [2004] FJHC 266; HAM0074J.2004S (24 November 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CR. MISC. CASE NO: HAM0074 OF 2004S

Between:

KAILESH NAND SAMI
Applicant

And:

THE STATE
Respondent

Hearing: 19th November 2004
Ruling: 24th November 2004

Counsel: Mr. E. Veretawatini for Applicant
Ms V. Lidise for State

JUDGMENT

This matter was originally set for bail pending appeal. However, because the court record was available, and both parties ready for hearing, I proceeded to hear the appeal itself. This is my judgment.

The Appellant was charged in the Nausori Magistrates’ Court as follows:

Statement of Offence

THROWING OBJECT: Contrary to Section 105 of the Penal Code, Cap. 17.

Particulars of Offence

KALESH NAND SAMI s/o KEAPPA REDDY on the 9th day of September 2004 at Lot 4 Malo Road, Davuilevu, Nausori in the Central Division, wilfully threw an object namely a stone at RATTAN SEN s/o MAHDHO.

The matter was first called on the 3rd of November 2004. The plea was taken and the Appellant pleaded guilty. He was not told of his right to counsel.

The prosecution outlined the facts. They were that on the 9th of October 2004 at 7.30pm the Appellant was drunk and reversed his vehicle into the complainant’s gate. The complainant questioned the Appellant, the Appellant became angry and threw a stone at the complainant. The matter was reported to the police. A medical report was tendered to the court. However it is the report of someone called Roshni Kaur, who is not the complainant. It records a small laceration on the palm.

The Appellant was convicted. He had 3 previous convictions in 1999 for forgery-related offences, in respect of which he was sentenced to a suspended term of 9 months imprisonment. The learned Magistrate was however given an inaccurate list of previous convictions which showed that the Appellant was sentenced to a 9 month custodial sentence. The learned Magistrate said, in sentencing the Appellant:

“Given the accused PC’s and the injuries shown on the complainant’s Medical Report, the accused is sentenced to 6 months imprisonment.”

The grounds of appeal are that the learned Magistrate erred in relying on the list of previous conviction, erred in failing to tell the Appellant of his right to counsel, and erred in imposing a sentence which is harsh and excessive.

State counsel concedes the inaccuracy of the list of previous conviction, and the failure to advice the Appellant of his right to counsel, but says that in the circumstances a 6 month term of imprisonment was not excessive.

The Appellant was not told of his right to counsel. This was a breach of section 29 of the Constitution. However, such a breach leads to a reversal of the conviction only where it is shown that the accused was prejudiced by lack of legal representation. The question is, if the Appellant had been represented, would the proceedings have been conducted differently, and would there have been a different result? The answer to both questions in this case, must be in the affirmative.

Firstly, in mitigation counsel would have explained to the Magistrate the background to the case. At the hearing of this appeal, counsel for the Appellant told me from the bar table, that there was an on-going dispute between the Appellant’s family and the complainant’s family. If this is the case, then it should have been brought to the court’s attention so that the matter could be verified and a binding-over order considered for both sides to the dispute. Certainly, there was more to the throwing object charge than met the eye.

Secondly, the personal circumstances of the Appellant should have been outlined in mitigation. This was a young unrepresented offender who said nothing in mitigation. The court had a duty to elicit information from the Appellant to assist in the sentencing process.

Thirdly, the learned Magistrate was given the wrong medical report by the prosecution and he relied upon it for sentencing. If the Appellant had been represented, counsel would have objected to the tendering of the report.

Lastly, counsel would have told the court that the Appellant had been given a non-custodial term of imprisonment in 1999, and that the record of previous convictions was inaccurate. Further, the convictions were entered when the Appellant was a juvenile. In these circumstances, the court would not have imposed a custodial sentence on the Appellant.

I find therefore that the Appellant was prejudiced on several fronts as a result of lack of representation. I also find that the learned Magistrate erred in imposing a sentence, which was based on errors of fact.

In these circumstances the sentence must be quashed. A custodial sentence is not appropriate. This was a minor offence committed in the midst of what appears to be a neighbourly dispute. No injuries were caused and it appears no damage resulted from the incident. Instead I impose a fine of $100 which is to be paid to the complainant as compensation for the distress caused to her within 14 days, in default 30 days imprisonment.

The appeal is allowed.

Nazhat Shameem
JUDGE

At Suva
24th November 2004