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Dau v Reginam [1977] FJSC 83; Criminal Appeal 091 of 1977 (29 September 1977)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 91 OF 1977

PENIASI DAU
Appellant

V.

REGINAM
Respondent

JUDGMENT

The appellant was on the 12th July 1977 convicted by the Magistrates Court Nausori of throwing object contrary to section 97A of the Penal Code and sentenced to 12 months' imprisonment and six strokes of corporal punishment.

The appellant on the 21st July 1977 appealed against sentence.

On 29th July 1977 Tuivaga J. considered the record and did not confirm the corporal Punishment and revoked the Magistrate's order.

The appellant is 19 years of age and has one prior conviction for drinking liquor in a public place.

On the day of the offence the appellant with three others was drinking liquor in a bus shelter at Bau Landing.

The appellant stopped the bus and boarded it and asked the driver how much the fare to Nausori. The driver informed hit it was 22 cents. The appellant told the driver to stand on his seat which the driver refused to do, whereupon the appellant grabbed the driver by his shirt. The driver then started driving towards the Nausori Police Station but stopped after 3 change when the appellant grabbed his shirt again and told him to stop.

The driver then hit the appellant with a stick with the help of others he was taken off the bus. The appellant then picked up a stone and threw it at the driver. The stone missed him and broke a window of the bus. The incident happened in the day time and the bus was stationary when the stone was thrown. The incident happened in the day time and the bus was stationary when the stone was thrown.

The appellant was obviously under the influence of liquor at the time and was the instigator of the trouble but the facts as related to the Court below do not indicate that the incident was serious enough to justify the driver striking the appellant with a stick. The stone throwing followed shortly after the appellant was struck with the stick.

Counsel for the Crown conceded that the sentence was excessive but called for a deterrent sentence.

In view of the appellant's age and the fact that he has only one minor prior conviction on the facts of the case I consider the sentence of 12 months' imprisonment in excessive but that a deterrent sentence is called for. There are far too many irresponsible youths throwing stones at vehicles an offence that can result in damage to property and injury to occupants of vehicles.

The appeal is allowed. The sentence of 12 months' imprisonment is set aside and in lieu thereof the appellant is sentenced to 6 months' imprisonment.

R.G.Kermode
JUDGE

Suva,
29th September, 1977.