Home | Databases | WorldLII | Search | Feedback High Court of Fiji

State v Yao - Sentence [2013] FJHC 119; HAC205.2012 (18 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 205/2012

BETWEEN:

THE STATE

AND:

HILDA YAO

COUNSEL: Mr N Lajendra for the Suva City Council

Mr G O'Driscoll for the accused

Date of Hearing: 22/02/2013
Date of Judgment: 18/03/2013

SENTENCE

01. This matter was transferred from Suva Magistrate Court to this court for the purposes of Sentencing as it was determined by the magistrate's court that the fine has to be imposed exceeds the monetary jurisdiction of the Criminal Division of the Magistrate Court.

02. The accused was charged on an information filed before Suva Magistrate Court by Suva City Council(hereinafter referred as ("SCC")

Statement of Offence

CONDUCT THE BUSINESS OF A REFRESHMENT BAR WITHOUT HOLDING A VALID LICENCE: Contrary to Regulations 4(1), 13(1) and 16 of the Public Health (Hotels, Restaurant & Refreshment Bars)(Suva) Regulations, Cap 111.

Particulars of Offence

HILDA YAO of 164 Toorak Road, Toorak, Suva being owner of the Refreshment Bar trading as HILDA RESTURANT situated at SHOP 25 & 26, YATU LAU ARCADE, ROADWELL ROAD SUVA did on the 6th day of April 2009, at SHOP 25 & 26, YATU LAU ARCADE, RODWELL ROAD, SUVA in the CENTRAL DIVISION conduct a business at a Refreshment Bar without holding a valid licence in respect of the said premises.

03. At the end of the hearing the learned magistrate found the accused guilty and pursuant to section 190(b) and 191 of Criminal Procedure Decree 2009, transferred the case to this court to impose an appropriate sentence.

04. Counsel for the prosecution submits court to consider sections 56, and 61(1) of the Sentencing and Penalties Decree, 2009 and Regulation 16 of the Public Health (Hotel, Restaurant and Refreshment Bar) Regulations, Cap 111.

05. Section 56(1)(a) of Sentencing and Penalties Decree 2009 states:

"In all Acts, Decrees, Promulgations and Regulations now or at any time in future in force in Fiji-

(a) A reference to the imposition of a fine or maximum fine or maximum fine of less than $100.00 shall be deemed to impose a fine or maximum fine as the case may be, of $100.00, unless otherwise specified in Regulations made under section 58."

Section 56(2) of the Decree states:

"Sub section (1) does not apply to fines that are expressed to be for continuing offences, which shall be set one half of the substantive fine for each day that an offence continues, and these shall be expressed as penalty units in accordance with sub-section(1)."

06. Section 16 of the Public Health (Hotel, Restaurants and Refreshment Bars),Regulations, Cap 111 states as follows:

"Any person convicted of an offence under the provisions of these Regulations shall be liable on conviction in the case of a first offence to a fine not exceeding $20.00 and in the case of a second offence to a fine not exceeding $40.00, and in the case of a subsequent offence to a fine not exceeding $100.00 or to imprisonment for a term not exceeding 6 months or to both such fine and imprisonment, and in the case of a continuing offence, to a further fine not exceeding $4.00 for each day during which the offence continues."

07. By virtue of Regulation 16 of Public Health(Hotel, Restaurants and Refreshment Bars), Regulations Cap 111, the law recognizes that there is a continuing offence as well in respect of the offence.

08. By virtue of section 56(1) of the Sentencing and Penalties Decree the substantive fine of $20.00 under Public Health (Hotel, Restaurants and Refreshment Bars), Regulations, Cap 111 has been amended to $100.00.

09. By virtue of section 56 (2) of the Sentencing and Penalties Decree the fine for continuing offence of $4.00 under Public Health(Hotel, Restaurant and Refreshment Bars), Regulations, Cap 111 has been amended to $ 50.00 being one half of the substantive fine.

10. These amendments would apply in respect of those cases which fall within the ambit of section 61(1) of the sentencing and Penalties Decree 2009.
    
11. Justice Pain in State v Nakautoga, Criminal Appeal No. HAA 130 of 1997 had very clearly ruled out that where the sentence is fixed by legislation, the court does not have the power to move outside the confines of the fixed prescribed penalty. At page 4 of the decision Justice Pain stated:
    

"This penalty may seem harsh for possession of such a small quantity of Indian hemp and this is one of the factors that influenced the learned magistrate to extend leniency by discharging the Respondent. However, it is the penalty that the law of the country demands. The legislators have considered illegal drugs to be so deleterious in the community that an immediate prison sentence must be imposed upon every person who offends. Any relaxation from the strictures of these provisions must be initiated by Parliament and not judicial innovation. It is not for the Courts to usurp or pre-empt the legitimate functions of Government."

12. In Land Transport Authority v Volavola, Criminal Appeal No: HAA 66 of 2002S, The Honourable Madam Justice Shameen had respectfully endorsed the comments expressed by the Honourable Justice Pain in State v Nakautoga. At page 4 of the judgement Madam Shameem J state:
    

"However, if it was intended to be a sentence, then the minimum penalty is $70.00 fine with a demerit point of 2. Section 44 does not apply to sentence fixed by law. This point was dealt with by Honourable Pain J in State v Nakautoga Criminal Appeal No: 130 of 1997 in respect of a mandatory minimum sentence under the Dangerous Drugs Act, and I respectfully endorse his findings. This was not a case in respect of which section 44 could have been applied."

13. This position was endorsed by Justice Thurairajah in the case of Suva City Council v Vilma Wati, Criminal Appeal Case No. HAA 065 of 2010.
    
14. In the mitigation submission filed on behalf of the accused defence counsel submits that this matter was prolonged in the magistrate courts largely for compliance. Further hearing was taken in absentia of the accused.
    
15. But the chronology of events submitted by the prosecution clearly indicates that the conduct of the accused in the Magistrate Court as well as in this court resulted in several adjournments.
    
16. The defence counsel submits that as the Food Safety Regulations 2009 came in to effect from 05th June 2009, Part IX of which would now apply to the situation at hand and the prosecutorial authority would be the Ministry of Health. But in this case the offence was committed on 06th April, 2009 and the proceedings were commenced on 14th May, 2009.Both these dates are prior to the commencement of Food Safety Act, 2003.Hence the Food Safety Act does not apply to this case.
    
17. Hence I conclude that the Regulations 16 of the Public Health (Hotels, Restaurants and Refreshment Bars) Regulations, Cap 111(up to 31st January 2010) and Sentencing and Penalties Decree, 2009(from 1st February, 2010) will apply to these proceedings.
    
18. I have carefully considered these submissions in light of the provisions of the Sentencing and Penalties Decree No: 42 of 2009 especially those of the sections set out below in order to determine the appropriate sentence.
    
19. Section 15(3) of the Sentencing Decree provides that:
    

"as a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in Section 4, and sentence of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in the General Sentencing Provisions of the decree".

20. The objectives of sentencing, as found in section 4(1) of the Decree, are as follows:

1. To punish offenders to an extent and a manner, which is just in all the circumstances;
   
2. To protect the community from offenders;
   
3. To deter offenders or other persons from committing offences of the same or similar nature;
   
4. To establish conditions so that rehabilitation of offenders may be promoted or facilitated;
   
5. To signify that the court and the community denounce the commission of such offences; or
   
6. Any combination of these purposes.
   

21. When the penalty is fixed by the legislation, the court does not have the power to move outside confines of the fixed prescribed penalty. Bearing in mind this principle I impose the following sentence on the accused.

This court imposes $ 27524.00 fine on the accused. In default 24 month's imprisonment.

The calculation of the fine is shown below.

1) Substantive Fine - $ 20.00

2) Continuing offence from 06/04/2009 to 31/01/2010 -$ 1204.00

(As per Regulation 16)

3) Continuing offence from 01/02/2010 to 11/07/11

(As per Sentencing and Penalties Decree 2009) - $ 26,300.00

Total $ 27524.00

==============

22. Pursuant to section 32 of Sentencing and Penalties Decree 2009 the accused is allowed to pay the fine in three instalments. 1st instalment $ 9000.00 be paid on or before 30th April 2013, the second instalment $ 9000.00 be paid on or before 15th of June 2013 and final instalment $ 9524.00 be paid on or before 31st of July 2013.

23. Once the fine is paid fully the entire amount be released to the Suva City Council.

24. The accused has 30 days to Appeal.

P Kumararatnam
JUDGE

At Suva
18/03/2013