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Varani v State [2008] FJHC 8; HAA009J.08S (25 January 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 009 of 2008

Between:

LEPANI VARANI
Appellant

And

THE STATE
Respondent

Hearing: 17th January 2008
Judgment: 25th January 2008

Counsel: Appellant in person
Ms L. Lagilevu for State

JUDGMENT

The Appellant appeals against a sentence of 7 months imprisonment imposed by the Nasinu Magistrates’ Court for the offence of absconding whilst on bail. He also raises the issue of his conviction, saying that he had not absconded and that the facts did not disclose the offence. The State opposes the appeal.

The charge was that on the 21st of June 2007 at Nasinu in the Central Division, the Appellant, being an accused person released on bail by the Nasinu Magistrates’ Court with conditions, breached the condition of such bail by not reporting to the Nausori Police Station as ordered and by absconding bail without reasonable cause.

The matter was called on the 19th of October 2007, the Appellant waived his right to counsel, and he was remanded in custody until the 2nd of November 2007. On that date the charge was amended to specify the date on which the Appellant had been ordered to appear (23rd August 2007) and explained to the Appellant. He said he understood it and pleaded guilty. He was treated as a first offender, was 36 years old, married with two children and earned $150 to $200 per week as a part-time minivan driver. He said he had forgotten his court date, was the sole breadwinner in his family and was willing to pay a fine to avoid a non-custodial sentence.

The learned Magistrate noted the plea and the mitigation, said that the maximum sentence was $2000 or 12 months imprisonment, and that the tariff was either a non-custodial sentence or a 9 month prison term, depending on the mitigation. He commenced at 6 months imprisonment and after adjusting for the mitigation, sentenced the Appellant to 7 months imprisonment.

The Appellant submits that his plea was invalid because he had not been told on the 21st of June 2007 to appear in court on the 23rd of August. He accepts that he did not so appear.

I called for the original court file Number 1243/06 to check. On that file he was charged with "Absconding Bail Conditions." The charge was that on the 22nd of October 2006 he had been released on bail with a 6pm to 6am curfew, at a fixed address which he was in breach of. These conditions were fixed by the Nasinu Magistrates’ Court. The Appellant pleaded not guilty and on 10th May 2007 he appeared and said he had not breached his bail conditions. The matter was adjourned to the 24th of May 2007 for hearing. On that day the Appellant appeared but the matter was adjourned to the 7th of June 2007. On the 7th of June it was adjourned to the 21st of June 2007. The Appellant was present. The record reads:

"Court: (1) Adj. 31.8.07 for (M).

(2) Bail extended."

The next date on the record is the 23rd of August 2007. The Appellant did not appear and a bench warrant was issued returnable on the 1st of October 2007 and then the 12th of November 2007. The Appellant did appear on 19th October 2007 and on the 2nd of November 2007. There is no record of any court sitting on the 31st of August 2007.

In Criminal Case 229/06, the Appellant was charged with unlawful use of motor vehicle and with robbery with violence. In that case he was bailed on conditions, on the 24th of May 2007 pending trial. The case was next called on 7th June 2007 and the Appellant was present. He was also present on the 21st of June 2007 when the case was adjourned to the 23rd of August 2007 for Mention. On the 23rd of August 2007 he did not appear and a bench warrant was issued. He next appeared on the 26th of November 2007. Clearly therefore the charge refers to absconding in Case 229/06. He did in fact appear on the 21st of June and was warned to attend court on the 23rd of August. His failure to so attend was a breach of his bail and the charge is correct. The facts outlined disclose this although they refer to other court files for which the Appellant was also granted bail on the same conditions.

The charge was explained to the Appellant and there cannot have been any misunderstanding of it. The plea was unequivocal and the conviction was correct.

As for sentence the Appellant has an unimpressive list of convictions dating from 1994. State counsel pointed out to me that in a previous appeal I had reduced his sentence of 9 months imprisonment for an offence of absconding, to 6 months because he had never previously been convicted of such an offence. This therefore is his second offence under the Bail Act and it called for a higher sentence. The 7 month term imposed is not harsh nor excessive. It is also correct in principle.

This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
25th January 2008