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Basa v The State [2005] FJHC 487; HAA0084J.2005S (16 September 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0084 of 2005S

Between:

SAKIUSA BASA
Appellant

And:

THE STATE
Respondent

Hearing: 2^nd September 2005
Judgment: 16^th September 2005

Counsel: Appellant in Person
Ms. V. Lidise for State

JUDGMENT

The Appellant who appeals against sentence was charged with others, as follows:

First Count

Statement of Offence

DAMAGING PROPERTY: Contrary to Section 324(1) of the Penal Code, Act 17.

Particulars of Offence

SAKIUSA BASA, MANASA SASABULA, PENI MATARAIVULA, PITA NAINOKA, MELI VAKALOLOMA, PAULIASI MATAI and SENIJIELI BOILA, on the 27^th day of August, 2004 at Suva in the Central Division, wilfully and unlawfully, damaged the tower bolt of cell block valued at $2.50 the property of STATE FIJI GOVERNMENT.

Second Count

Statement of Offence

ESCAPING FROM LAWFUL CUSTODY: Contrary to Section 138 of the Penal Code, Act 17.

Particulars of Offence

SAKIUSA BASA, PENI MATARAIVULA, MANASA SASABULA, PITA NAINOKA, MELI VAKALOLOMA, PAULIASI MATAI and SENIJIELI BOILA, on the 27^th day of August, 2004 at Suva in the Central Division, escaped from the custody of Police Support Officer 1144 PITA VAMARAI.

Third Count

Statement of Offence

RESISTING ARREST: Contrary to Section 247(b) of the Penal Code, Act 17.

Particulars of Offence

SAKIUSA BASA on the 27^th day of August, 2004 at Suva in the Central Division, resisted after arrest by Police Constable Number 1271 HARISH CHAND, in the due execution of his duty.

Fourth Count

Statement of Offence

RESISTING ARREST: Contrary to Section 247(b) of the Penal Code, Act 17.

Particulars of Offence

PITA NAINOKA and SENIJIELI BOILA, on the 27^th day of August, 2004 at Suva in the Central Division, resisted after arrest by Police Support Officer Number 1715 SAKIUSA TURAGA, in the due execution of his duty.

Fifth Count

Statement of Offence

FAIL TO FURNISH FINGERPRINT: Contrary to Section 18(1)(3) of the Police Act, Cap. 85.

Particulars of Offence

SAKIUSA BASA and PENI MATARAIVULA, on the 27^th day of August, 2004 at Suva in the Central Division, whilst in the lawful custody for the offence of escaping from lawful custody, fail to furnish their finger prints.

The charges were first laid on the 23^rd of September 2004. The Appellant pleaded not guilty. There were many adjournments because of the non-appearance of the Appellant’s co-accused. He eventually pleaded guilty on all counts on the 11^th of May 2005. The facts were that on the 27^th of August 2004, the Appellant was brought from Suva Prison to Government Buildings for his court hearing. He was in the custody of Special Constable (now known as a Police Support Officer) 1144 Pita Vamarai. At 12.30pm, a police prosecution officer standing outside the cellblock raised the alarm that the prisoners had escaped. He with Constable Vamarai, one Constable Lote, and one Constable Rasaqa and Constable Koresi then ran after the Appellant and six other escapees and captured them. Each prisoner was interviewed under caution, and each admitted the offence.

These facts were admitted. The prosecution also read facts for Court File 2263/04. They were that on the 27^th of August 2004 at 1.15pm, the Appellant escaped from the window of High Court No. 2. The alarm was raised and police officers chased him up Gladstone Road, where he was eventually recaptured. He was also charged for damaging property, for cutting a tower bolt on the Government Building cellblock.

These facts were also admitted. In mitigation the Appellant said that he had escaped because the courts had refused all his bail applications, and because of the degrading conditions at the Suva Prison. He asked for a concurrent term of imprisonment. The learned Magistrate delivered sentence on the 25^th of May 2005. He treated the Appellant as a first offender because the prosecution had failed to produce any record of previous convictions for him. He sentenced him to 6 months imprisonment on each of the Counts 1, 2, 3 and 5 to be served concurrent to each other, but consecutive to the 6 year term he was then serving.

He now appeals against sentence. At the hearing of this appeal he said that the learned Magistrate should have ordered that the 6 month term should have been made concurrent to the 6 year term he is serving. He said that inadequate weight had been put on the conditions of the Suva Prison and that because the offences were related, the consecutive term offended the one-transaction rule. Finally he said that the sentence should be made concurrent as an act of mercy in the light of his age (25 years), and other mitigating factors.

The State opposes this appeal saying that the total sentence of 6 months imprisonment is correct in principle for offences of escaping.

There is no appeal against conviction. However, a perusal of the charges shows that the convictions on Counts 3 and 5 cannot stand. In relation to Count 3, he was convicted of resisting arrest by a police officer, contrary to section 247(b) of the Penal Code. That offence does not apply to arrests made by Police Support Officers, or Special Constables as they were formerly called. In Parshu Ram v. Reginam 29 FLR 65, the Court of Appeal considered this very point. In that case, the appellant had been convicted of assaulting a Special Constable in the due execution of his duty, under section 247(b) of the Penal Code. The Court considered the definition of a police officer in the Interpretation Act Cap 7, and in the Police Act. In particular the Court said that because Special Constables were dealt with, in the Police Act under a separate chapter, under the heading “Special Constabulary”, the words “police officer” in section 247(b) of the Penal Code could not include Special Constables, and that the prosecution should instead have laid a charge under section 247(e) of the Penal Code which makes it an offence to assault any person “on account of any act done by him in the execution of any duty imposed on him by law.” Thus the charges on Counts 3 and 4 of the charge sheet are a nullity. The convictions must be quashed, and the sentence imposed on Count 3 must be quashed.

On Count 5, no facts were led as to the basis of this charge. To simply state that he was charged with the offence, does not indicate the factual basis of the charge. The Appellant’s admission that he was so charged does not satisfy the requirement that he must admit to failing to furnish fingerprints. The facts do not disclose the offence on Count 5, and the conviction and sentence must be quashed. Although there is no appeal against conviction, I quash the convictions on Counts 3 and 5 in my revisional jurisdiction. The Appellant was not charged with the others on Count 4.

In relation to the sentences imposed on Counts 1 and 2, the 6 months are correct in principle. Indeed on Count 2, the 6 month sentence is within the tariff for escaping from lawful custody. A concurrent sentence would have been wrong in principle, not only in the absence of a factual link with the earlier charge, but also because a conviction for escaping should ordinarily lead to a consecutive term in order to have a deterrent effect.

Despite all the mitigating factors outlined by the Appellant, this appeal is unsuccessful on the issue of concurrent terms of imprisonment. However the convictions and sentences imposed on counts 3 and 5 are quashed.

Nazhat Shameem
JUDGE

At Suva
16th September 2005