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Bavoro v State [2013] FJHC 1; HAA020.2012 (15 January 2013)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION
Criminal Appeal No: HAA020 of 2012

Between:

SAMUELA BAVORO
Appellant

And:

THE STATE
Respondent

Hearing: 10 January 2013
Judgment: 15 January 2013

Counsel: Appellant in person
Ms M. Fong for State

JUDGMENT

[1] This is an appeal against sentence.

[2] On 31 March 2010, the appellant was jointly charged with two others with aggravated burglary. He remained in custody on remand until 16 August 2012, when he pleaded guilty to an amended charge of receiving stolen property and was sentenced to 10 months' imprisonment suspended for three years. At the time of sentencing, the appellant was 30 years old and married with children. He was not a first time offender. Items, namely, re-charge phone cards and cigarettes found in the appellant's possession, were stolen from a supermarket in Natua, Seaqaqa.

[3] This was not the only case in which the appellant was in custody on remand. The appellant had other pending cases before different Magistrates' Courts in Fiji. His bail status in his other cases cannot be determined from the court record in this matter. It appears he was in custody on remand in most of them. He told this Court he had been discharged in some of his other cases, while some are still pending.

[4] The appellant's grievance relates to the manner in which the learned magistrate dealt with the remand period in sentence. Counsel for the State accepts that, the appellant remained in custody on remand from March 2010 until he was sentenced in August 2012. In his sentencing remarks, the learned magistrate arrived at a term of 10 months' imprisonment after making adjustments for mitigating and aggravating factors. The learned magistrate then suspended the sentence by giving the following reasons:

"I sentence you to 10 months imprisonment and considering the term you already spent in custody, I am of the view to suspend it for three years to allow the said accused to rehabilitate...".

[5] The appellant submits that the learned magistrate contravened section 24 of the Sentencing and Penalties Decree by not taking into account his remand period when determining the term of imprisonment. He argues that since his remand period exceeded the term of imprisonment arrived at by the learned magistrate, no further imprisonment should have been imposed. He submits that his sentence effectively means that he is being punished twice for the same conduct and his total sentence is about three years' imprisonment, which is manifestly excessive.

[6] Section 24 of the Sentencing and Penalties Decree states:

If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court otherwise orders, be regarded by the court as a period of imprisonment already served by the offender.

[7] In this case, the appellant was quite properly sentenced to a term of imprisonment by the learned magistrate. Once a term of imprisonment was imposed, the learned magistrate was then obliged to comply with section 24 of the Sentencing and Penalties Decree by making appropriate reduction in the sentence to reflect the appellant's remand period. Unfortunately, that was not done. Instead, the learned magistrate used the remand period to justify suspending the sentence. Remand period is not a special circumstance. Remand period is a form of imprisonment, pending trial. If a remanded suspect is subsequently convicted of the alleged offence and sentenced to an imprisonment term, the only sensible and fair approach to punishment is to make a downward adjustment to the sentence to reflect the remand period. This procedure has been endorsed by the Court of Appeal in Basa v the State [2006] FJCA 23; AAU0024.2005 (24 March 2006) and the Supreme Court in Ledua v State [2008] FJSC 31; CAV0004.2007 (17 October 2008).

[8] In all circumstances of this case, a term of 2 years' imprisonment was an appropriate sentence. The appellant's remand period was about 2 ½ years. After adjusting the sentence to reflect the remand period, there was no need to impose further punishment on the appellant. The appellant should have been discharged. Accordingly, I make an order that the appellant be discharged effective from 16 August 2012.

[9] The appeal is allowed.

Daniel Goundar
JUDGE

At Labasa
15 January 2013

Solicitors:
Appellant in person
Office of the Director of Public Prosecutions, Labasa for State