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Waqa v State [2010] FJHC 27; HAA061.2009 (5 February 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 61 OF 2009

GABRIEL WAQA
Appellant

V

STATE
Respondent

Appellant in person
Ms. R. Drau for the respondent

Date of Hearing: 2 February 2010
Date of Judgment: 5 February 2010

JUDGMENT

1. On the 12th December 2008 at the Nasinu Magistrates Court this appellant was sentenced for one charge of house-breaking with intent to commit felony contrary to section 312(1) of the Penal Code, Chapter 17 and a second count of assaulting a police officer in the due execution of his duty. The date of conviction is unclear because the file from the Court below came to be lost and was "reconstructed" with the help of DPP Counsel. Nor are the facts of the case available.

2. The sentences passed were indeed rather odd. The learned Magistrate rehearsed the mitigation that this appellant (the then accused) was a 19 year old youth who had not excelled in his secondary schooling and as a result had fallen in with a bad peer group and was implicated in various petty crimes. In recognition of entreaties by higher Courts to keep youth from prison, the learned Magistrate who was of the view that the accused should face immediate imprisonment, convicted him and put him on a $3,000 good behavior bond to keep the peace for 2 years on the following conditions:

(i) accused to leave Viti Levu on the following day for Arovudi Village (Ovalau) and to stay with Josateki Waqa and his family for the next 2 years and not to change that residence without the Court’s permission;

(ii) To follow the directions of Josateki Waqa in the art of farming, fishing and also to learn his culture to become a law abiding citizen;

(iii) not to commit any offence, while under Josateki Waqa’s supervision and direction;

(iv) In breach of any of those conditions to be imprisoned on Count 2 for 2 years and Count 1 for one year, both consecutive to each other making a total of 3 years imprisonment.

The Magistrate also ordered a $200 compensation payment to the assaulted Policeman.

3. Apart from the troubling conditions imposed, a matter to which I shall turn shortly, the default sentences would appear to be reversed. The "tariff" sentence for house-breaking is said to be between 18 months and 3 years (Turuturuvesi v. State HAA 0086 of 2002 per Shameem, J.) and that of assaulting a police officer in the region of 6 to 9 months (Nakoroluvu v. State AAU 58 of 2005 FCA).

4. Very sadly this appellant breached his good behavior "conditions" and came to Viti Levu to be with his de facto wife in childbirth. Not only is the reason for such breach deserving of sympathy, the facts that such stringent conditions were imposed on him in the first place are in the Courts view ultra vires.

5. The Magistrate derives his powers to pass a good behavior bond under s.41 of the Penal Code, Chapter 17. It reads:

"Security for keeping the peace.

41(1) A person convicted of an offence not punishable with death may, instead of or in addition to any punishment to which he is liable, be ordered to enter into his own bond with or without sureties, in such amount as the court thinks fit, conditioned that he shall keep the peace and be of good behavior for a time to be fixed by the Court, not exceeding two years, and may be ordered to be imprisoned until such bond, with sureties if so directed, is entered into; but so that the imprisonment for not entering into the bond, shall not extend for a term longer than six months:

Provided that no order shall be made under this section where the person convicted has been sentenced to a term of imprisonment of more than six months".

6. The power to suspend sentences is derived under s.29 of the Penal Code, Chapter 17 which reads:

" s.29 (1) A Court which passes a sentence of imprisonment for a term of not more than two years for an offence, may order that the sentence shall not take effect unless, during a period specified in the order, being not less than one year nor more than three years from the date of the order, the offender commits in Fiji another offence punishable with imprisonment and thereafter a court having power to do so orders under the provisions of section 30 that the original sentence shall take effect; and in this and in sections 30, 31 and 32 "operational period" in relation to a suspended sentence means the period so specified in the order".

7. It would seem very unfortunate in this case that the learned Magistrate has put the appellant on a good behavior bond but with drastic conditions and then on top of that has passed a suspended sentence on him. Albeit very well meaning in his stated intention of keeping a young first offender from prison, he has nevertheless imposed an extremely harsh sentence on him, which many would say would inevitably lead to a term of imprisonment in any event.

8. There is nothing in the Penal Code which would give the magistrate the authority to impose conditions on a good behavior bond apart from dealing with sureties; and to in addition pass a suspended sentence is akin to double jeopardy. Nor is it within the power of the Magistrate to order a good behavior bond when he has in addition passed a sentence of more than 6 months.

9. Pursuant to sections 301(2) and 256(3) of the Criminal Procedure Decree 2009 this Court quashes the sentence passed by the Magistrate below and would substitute a new sentence as follows:

"The accused to be sentenced on Count 1 for 2 years and Count 2 for 1 year, both sentences to be served concurrently, and both to be suspended for a period of 2 years".

To that extent this appeal succeeds.

10. The appellant is to be released from custody but remains on notice of his suspended sentences. It is to be hoped now that with a wife and new baby that his family may become a new focus in his life in place of petty crime.

Paul K. Madigan
Judge

At Suva
5 February 2010