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State v Rokosena [2015] FJMC 90; Criminal Case 223.15 (23 July 2015)

IN THE MAGISTRATE'S COURT AT SUVA

Criminal Case No:223/15

STATE

V

ILISAPECI ROKOSENA

For Prosecution: PC Walter
For the accused: Ms. David (Legal Aid Commission)

SENTENCE

1.You, Ilisapeci Rokosena are here, to be sentenced on admission of guilt on your own accord for the following offence.

ABSCONDING BAIL: Contrary to Section 2 of the Bail Amendment Decree No. 28 of 2012 an amendment to Section 26(1) of the Bail Act 2002.

2. ILISAPECI ROKOSENA on the 1st day of December 2015 at the Magistrates Court, Suva in the Central Division being an accused person released on bail with the condition to appear on the 12th day of January 2015 at the Magistrates Court, Suva breached the said condition without a reasonable cause.

3. You pleaded guilty for the said charge on 15/4/2015 before this court with your own free will. This court is satisfied with your plea is unequivocal and that you understand the repercussion of your plea.

3. The summary of facts are, On 1/12/14 Ilisapeci Rokosena B1, 23 years, student of Lot 28 Sagali Place, Nadera attended Suva Magistrate Court in a case of Theft vide CF 1751/14 and the case was adjourned for mention on 12/1/14.On 12/1/15 the B1 failed to attend Court and as such Bench warrant no. 43/15 was issued against her.On 27/1/15 CPL 2734 Matai A1 arrested the B1 from Nadera and escorted her to Totogo Police Station.The B1 was interviewed under caution whereby she admitted the allegation. Please refer to Q & A 8-

10.The B1 has been charged for the offence of Absconding bail Contrary to Section 2 of the Bail Amendment Decree No. 28 of 2012 an amendment to Section 26(1) of the Bail Act 2002.The B1 is appearing in custody for court today 29/1/15.

4. The Bail (Amendment) Decree Number 28 of 2012 outlines the penalty for breach of bail as follows:

"Penalty for absconding or breaching conditions of bail

(1) A person who has been released on bail and who fails without reasonable cause to surrender to custody or otherwise without reasonable cause, breaches any condition of bail imposed by Court, commits an offence and is liable on conviction to a fine of $2000.00 or 12 months imprisonment or both".

(2) The burden is on the defendant to prove that he or she had reasonable excuse for failing to surrender to custody or for a breach of his or her bail conditions".

5. The tariff for a charge of Absconding bail was outlined in the case of Raj v State [2008] FJHC 74; High Court Criminal Appeal Case No. HAA 032 of 2008 (Ruling on 18 April 2008). The tariff was stated by Mataitoga J. At paragraph 20 as follows:

"I would set the tariff for sentence to range from a non-custodial to 6 months imprisonment. It is possible depending on the facts that one may go higher, but it will be exceptional. In this case I will take 5 months as my starting point."

6. In the case of State v Seru [2014] FJMC 75; Criminal Case 553.2014 (Sentence on 7 May 2014) the learned Magistrate had considered the Tariff as ranging from 3 months to 6 months and after considering the mitigating factors sentenced the accused for the charge for a term of 7 weeks imprisonment. The accused in that case was not awarded a non-custodial sentence as he was a Police Officer and had knowledge of the law.

7. Maximum penalty could be imposed for Absconding and Failing to Surrender to Custody is 1 year imprisonment and $2000 fine.

8. There are no Aggravating Factors for this case.

9. In mitigation, you said that you are 23 years of age, single mother of 1 child (3 years old), and employed at Talamawana Company as a cleaner. You earns on an average $120.00 per week. You are a First offender. You are Remorseful. You reside with parents, younger siblings and your 3 year old son at Lot 28 Doi Place, Tamanu Road. You Promise not to re-offend. Seek non-conviction. You have fully co-operated with Police. You have been in remand for 2 months. You stated that you did not intend to abscond bail but you were mistaken the date.

10. In Sentencing and Penalty Decree 2009 Section 4(2) provides; "In sentencing offenders a court must have regard to —

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender's culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender's previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option."

11. Primary object of sentencing and consideration of non-custodial sentence is described in Section 15(3) of Sentencing and Penalties Decree 2009 No: 42 of 2009 and various case authorities.

"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 sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part."

12. You are a first and young offender and are of previous good character. In view of the case authority Nariva v The State [2006] FJHC 6; HAA0148J.2005S (9 February 2006) where learned Judge Nazhat Shameem stated:

"The Courts must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preferences to imprisonment".

13. In Prasad v The State [1994] FJHC 132; Haa0032j.94s (30 September1994) S W Kepa J enunciated that the fact that Appellants are first offenders to be a very strong mitigaitigating factor in their favour. A prison sentence ought to be the last resort after the court has explored and exhausted all other alternative sentences.

14Suren SinghSingh v Th v The State [2000] FJHC 264; 2 FLR 127 where the learned Justice Shameem stated that:

"However as a general rule, leniency is shown to first offenders, young offenders and offenders who plead guilty and express remorse. If these factors are present then the offender is usually given a non-custodial sentence".

15. To as you were given non conviction in the substantial matter I was compelled to follow the same in this matter. Further In this backdrop, summary of facts, your early plea, your mitigation and the nature of offence, attract non conviction and non-custodial sentence for you.

17. Section. 16. (1) of said Decree gives powers to that. It says "In exercising its discretion whether or not to record a conviction, a court shall have regard to all the circumstances of the case, including: —

(a) the nature of the offence;

(b) the character and past history of the offender; and

(c) the impact of a conviction on the offender's economic or social well-being, and on his or her employment prospects."

18. Section 45(1) gives power to record a non-conviction. It Says;

"A court on being satisfied that a person is guilty of an offence may dismiss the charge and not record a conviction"

19. I therefore act under section 15(1) f and 45(1) of the Sentencing and Penalty Decree. I enter a non-conviction, charge is dismissed.

20. This order will not affect your career or future prospects. But this would be your final chance, don't come again and beg mercy from this court.

21. 28 days to appeal.

23rd July 2015, at Suva, Fiji Islands

Neil Rupasinghe
Resident Magistrate