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Ovaova v State [2010] FJHC 441; HAA016.2010L (24 September 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 016 OF 2010L

BETWEEN:

1. MARIKA OVAOVA
2. LISALA COLATI
Appellants

AND:

STATE
Respondent

Second Appellant in Person
Ms N. Tikoisuva for the State

Date of Hearing: 23 July, 19 & 25 August, 17 September 2010
Date of Judgment: 24 September 2010

JUDGMENT

[1] On the 20th March 2010 in the Magistrates Court at Lautoka, these two appellants were convicted on their own plea of one offence of damaging property, contrary to section 324 of the Penal Code, Cap. 17. The charge particularized was that on the 11th January 2008 at Lautoka they willfully and unlawfully damaged the front windscreen, front left door glass, rear windscreen glass of the car registered no. CZ 044, valued at $846.00, the property of Nacanieli Natadra.

[2] They were each sentenced to 8 months imprisonment suspended for 3 years. In addition, each was ordered to pay $400 compensation and in default 30 days imprisonment.

[3] The appellants herein have filed a timely plea against sentence. Their grounds are that:

(i) the Magistrate did not consider their means when making an order for compensation.

(ii) the Magistrate had not taken into account the "background" of sexual insult to the second appellant's sister.

(iii) the sentence was harsh and excessive.

[4] The first appellant never appearing in this Court to prosecute his appeal, his appeal against sentence is dismissed.

[5] Under the Constitution (now abrogated), section 23(2) precluded a Court from making a financial order against a person without enquiring into the means of that person. Even though the Constitution is no longer operable, that codified provision has been enshrined in our common law.

[6] In the case of Sereima Bokadi v State (2002) HAA 75/02, Shameem J, in considering this very question said that the Court should consider regularity of employment, expected and current wages, financial burdens on the offender and other sources of income. She said that –

"It is wrong to expect other people (such as family members) to pay the fine except in the case of a juvenile."

These sentiments were repeated by the same Judge in Epeli Neidiri v Sikeli Vunimoli v State – HAA 34 of 2008.

[7] In addition to the case law, the Sentencing and Penalties Decree 2009 [section 32(2) and 32(3)] now makes it incumbent on a Court to consider the financial circumstances of an offender when making a restitution or compensation order.

[8] The record is silent as to enquiry as to means; the only mitigation offered by this appellant is sincere remorse and his youth (21 years). He was a first offender.

[9] The appellant now tells me that he is presently a Form 7 student at Nilsen High School, Vatukoula, with nil income nor means.

[10] The appellant's second and third grounds of appeal are without merit and they fail. If there was bad feeling towards the victim because of some sexual liaison between him and the second appellant's sister, then that could have been brought to the attention of the Magistrate at mitigation. If wasn't and the Magistrate cannot take into consideration matters that he is not aware of.

[11] The sentence passed is well within the range for this type of offence. The magistrate took all mitigating factors into consideration and passed a suspended sentence. This sentence is entirely appropriate.

[12] However, given that no enquiry was made into means and given that the appellant is a student without income I quash the compensation order of $400 made against him. The suspended sentence remains intact.

Paul K. Madigan
Judge

At Lautoka
24 September 2010