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Nagalu v State [2009] FJHC 4; HAA0109.2008 (16 January 2009)

IN THE HIGH COURT OF THE FIJI ISLANDS
APPELLATE JURISDICTION
AT SUVA

CRIMINAL APPEAL CASE NO: HAA 0109 OF 2008

BETWEEN

EPARAMA NAGALU

AND

THE STATE

Appellant in Person
Ms. W George for the State
Date of Hearing & Ruling: 16 January 2009.

RULING

1. Eparama Nagalu this is your appeal against the sentence passed in Magistrate Court Criminal case No: 1309 of 2008 at Nasinu. You were charge with:
   

Statement of Offence

BREACHING BAIL CONDITION: Contrary to sections 25[1][b] and 26 of the Bail Act 2002

Particulars of Offence

EPARAMA NAGALU on the 8th day of October 2008 at nasinu in the Central Division being an accused person released on bail terms and to report at Nasinu Police Station on every Mondays, Wednesdays and Fridays from any time between 0600 hrs and 1800 hrs and failed to comply with the orders given by the High Court vide HAC 122/2008

2. You pleaded guilty to the above charge and you were sentenced to 8 months imprisonment. This is your appeal against that sentence.
   
3. You submitred that the sentence is harsh and excessive on the following basis:
   
   1. The learned Magistrate did not take into account your guilty plea in passing sentence;
      
   2. The disparity in the sentence passed against you as first offender for this offence when compared to others several cases you submitted.
      
4. The State in their submission in response conceded that the sentence is harsh and excessive. I am indeed grateful to Ms George to this gesture of professional fairness and transparency.
   
5. I have considered both submission from the appellant and the State. I have also reviewed the sentence ruling of the learned Magistrate. I agree with the appellant submission that the sentence was harsh and excessive given the circumstances of this case. It is also correct that the guilty plea of the appellant was not taken into consideration by the learned Magistrate in passing sentence in this case.
   
6. I have also considered cases in the High Court where the accused had breached bail conditions and the sentences were reviewed in James Ashwin Raj v State HAA 032 of 2008; Lepani Varana v State HAA 0014 of 2007 and Sesoni Volau v State HAA 0059 of 2006. An important issue of mitigation in this cases was the fact that the appellant was a first offnce for that type of offence. That was not considered in this instance by the learned Magistrate.
   
7. On the basis of the above I would review the sentence as follows. I would start with 5 months imprisonment and I would decrease it to 3 months for the mitigation factors referred to by the learned Magistrate in his ruling and the fact that the appellant was a first offender for this type of offence. I would increase it to 6 months imprisonment for the aggravating factors referred to by the learned magistrate in his ruling. I would further reduce it by 2 months to 4 months imprisonment for the guilty plea of the appellant.
   
8. In conclusion the appeal against sentence succeeds. The new sentence will be 4 months imprisonment effective from 15 October 2008.
   

ORDERS

9. I will make the following orders:
   
   1. The appeal against sentence succeeds;
   2. The sentence of 8 months imprisonment passed in the Magistrates Court in this matter is set aside;
   3. The new sentence is 4 months imprisonment effective from 15 October 2008.
      

Isikeli Mataitoga
JUDGE

At Suva
16 January 2009.