Counsel: Mr P. Bulamainaivalu for Respondent;
Ms R. Olutimayin with R. Nair for 1st, 2nd, 4th, and 6th Appellants;
3rd, 5th, 7th, 8th, and 9th Appellants in Person
Hearing: 26th October 2001
Judgment: 2nd November 2001
JUDGMENT
This appeal is in respect of sentences delivered by the learned Chief Magistrate on the 16th of March 2001 in respect of the following
charges:
FIRST COUNT
/b>
Statement oence
WRONGFUL CONFINEMENT: Contrary to Section 253he Penal Code, Cap. 17.
Particulars of Offence
VILIVE TUBUNA, JOSEVA BALELOA, ISIKELI TAMANI, SAILOSI BERWICK, PENI TUKAI, SAKIUSA TUKANA, SENIJIELI BOILA, MARIKA BANUVE, JONE DI
ATULAGA, JONE COLE, SULIASI YAROLEVU, APIMELEKI TUI, JALE KARALO, TEVITA MALASEBE, ANARE TOKALAUVERE, TAITO RARASEA, PRAVEEN CHAND,
VILIAME KANAENABOGI, NEMANI WAKA, SAIMONI ROKOTUNIDAU and AIYAZ ALI between the 11th day of July 2000 and the 17th day of July 2000,
at Naboro in the Central Division, knowingly and wilfully confined ASP EMINONI RORADURI, IP EMINONI, POA SEVECI NAISILISILI, CPL
722 ABARAMO QIO, POC MANOJ KUMAR f/n Shiu Narayan, POC SAMUELA SUGUTURAGA, POC PITA TAMANI, POC ILISONI QICA, POC VASA RAYASI, POC
ANANAIASA ROKOVATUNAWA, POC TOM SMITH, POC MANASA TUIDAMA, POC TEVITA QALILAWA.
SECOND COUNT
Statement of Offence
CRIMINAL INTIMIDATION: ContrarSection 330(b) of the PenalPenal Code, Cap.17.
Particulars of Offence
NEMANI WAKA, VILIAME KANAENABOGI, SAIMONI ROKOTUNIDAU, AIYAZ ALI, SULIASI YAROLEVU, JONE COLE, MARIKA BANUVE, SENIJIELI BOILA, SAKIUSA
TUKANA, PENI TUKAI, SAILOSI BERWICK, JOSEVA BALELOA and ISIKELI TAMANI between the 11th day of July 2000 and the 17th day of July
2000, at Naboro in the Central Division, without lawful excuse threatened to use knives, forks and iron rods on Prison Officers namely,
ASP EMINONI RORADURI, IP EMINONI, POA SEVECI NAISILISILI, CPL 722 ABARAMO QIO, POC MANOJ KUMAR f/n Shiu Narayan, POC SAMUELA SUGUTURAGA,
POC PITA TAMANI, POC ILISONI QICA, POC VASA RAYASI, POC ANANAIASA ROKOVATUNAWA, POC TOM SMITH, POC MANASA TUIDAMA, POC TEVITA QALILAWA.
THIRD COUNT
Statement of Offence
p class=MsoN=MsoNormal style="margin-left: 35.45pt; margin-right: 36.0pt; margin-top: 1; margin-bottom: 1"> : CB>: Contrary to Section 247(e) of the Penal Code, Cap. 17.
Particulars of Offence
SULIASI YAROLEVU, between the 11th day of July 2000 and the 17th day of July 2000, at Naboro in the Central Division, assaulted POC
MANASA TUIDAMA, a Prison Officer engaged in execution of his duty imposed on him by law.
FOURTH COUNT
Statement of Offence
: 1">
ASSAULTING PRISON OFFICERS IN THE DUE EXECUTION OF HIS DUTY: Contrary to Section 247(e) of the Penal Code, Cap. 17.
Particulars of Offence
VILIAME KANAENABOGI between the 11th day of July 2000 and the 17th day of July 2000Naboro in the Central DivisDivision, assaulted
POC MANASA TUIDAMA and POC TEVITA QALILAWA, Prison Officers engaged in execution of their duties imposed on them by law.
FIFTH COUNT
ass=MsoN=MsoNormal style="margin-left: 35.45pt; margin-top: 1; margin-bottom: 1"> Statement of Offence
/p>
ASSAULTING PRISON OFFICERTHE DUE EXECUTION OF HIS DUTY: Contrary to Section 247(e) of the Penal Code, Cap. 17.
Particulars of Offence
span>
NEMANI WAKA, between the 11th day of July 2000 and the 17th day of July 2000, at Naboro in the Centrvision, assaulted POC MANOJ KUMAR
f/n Shiu Narayan, a PrisoPrison Officer engaged in execution of his duty imposed on him by law.
EIGHTH COUNT
> Statement of Offence
DAMAGING PROPERTY: Contrary to Section 324(1) of the Penal Code, Cap. 17.
Particulars of Offence
SULIASI YAROLEVU and VILIAME KANAENABOGI between the 11th day of July 2000 and the 17th day of July 2000, at Naboro in the Central
Division, damaged a Prison Uniform which is worth $40.00 the property of the Prisons Department.
NINTH COUNT
Statement of Offence
/b>
DAMAGING PROPERTY: Contrary to Section 324(1) of the Penal Code, Cap. 17.
Particulars of Offence
  NEMANI WAKA between the 11th day of July 2000 and the 17th day of July 2000, at Naboro in the Central Division, damaged a lock which
is worth $500.00 the property of the Prisons Department.
Of the persons named on the charge, Accused Nu 2, 5, 6, 7, 9, 11, 12, 15, 16, 17, 18, 19 and 20 chose to plead guilty. The remaining
pers persons pleaded not guilty, but the learned Chief Magistrate decided to proceed to sentence those who pleaded guilty before
dealing with the trial of the others. The appeal of Aiyaz Ali, the Appellant in this case, is against that decision of the learned
Chief Magistrate. The appeals of Appellants 1 to 8 are in respect of severity of sentence.
I held in Jonetani Sereka & Others -v- The State Criminal Appeal No. HAA0057 of 2001S that the charge of Wrongful Confinement contrary to section 253 of the Penal Code was defective because the Appellants were in fact pleading to the lesser offence under section 256 of the Penal Code. That decision applies to the convictions of Appellants 1 to 8 in this case, and for the reasons I gave in that decision, I also
set aside the convictions of the Appellants in this case, and substitute them with convictions under
section 256 of the Penal Code. Having heard submissions in mitigation from counsel for the 1st, 2nd, 4th and 6th Appellants, and in person from 3rd, 5th, 7th and
8th Appellants, I can now proceed to sentence.
However today, when this judgment was due to livered at 9.30am, the 4th Appellant, Suliasi Yarolevu said that he had withdrawn instructiructions
from the Legal Aid Commission and wished also to submit that his plea of guilty was invalid because he did not understand what he
was doing in the Magistrates Court. I therefore decided to adjourn the judgment to this afternoon to consider his submissions.
The 4th Appellant
Section 309 of the Criminal Procedure Code of course provides that no appeal against conviction shall be allowed in the case of a guilty plea. However appeals against convictions
have been entertained on guilty pleas, where the pleas were equivocal, or where the offence was not made out by the prosecution in
the facts, or where the offence was not known to law. These matters render the plea a nullity, and the court must then order a re-hearing
on that basis.
In this case, the 4th Appellant (the 11th Accused, in the Magistrates Court) told the learned Magistrate that he understood the charges
and denied. In normal circumstances, in the absence of any evidence that the pleas were equivocal, that would be enough to dispose
of these submissions.
However these are not normal circumstances, because I have held that the chon section 253 of the Penal Code was defective, and in fact fact was a charge under section 256. The other Appellants have accepted this and proceeded to mitigation.
However the 4th Appellant says that he didunderstand even the lesser charge and asks for a hearing on a not guilty plea. Given the
cohe confusion in the charge on Count 1, the paucity of the facts outlined by the prosecution, and the fact that a number of original
co-defendants pleaded not guilty on the same charges and are currently awaiting trial in the Magistrates Court, I consider that there
is some force in his submissions. I therefore find on the basis of his submission that he is not sure what he pleaded to, and on
the basis that the charge on Count 1 was in fact defective, that his plea was not equivocal. I therefore set aside his guilty plea,
and substitute it with a not guilty plea, on Counts 1, 2 and 3 of the charge sheet. He must be tried together with his co-defendants
in the Magistrates Court.
The 9th Appellant
The 9th Appellant submits that sentencing for all Appellants, and of the remaining accused persons, should now await thclusion of
the trial. In hiIn his very clear submissions in court, he said that it was wrong in law to proceed to sentence some of the accused
when trial in respect of the other accused, was still pending. He said that it was unfair and prejudicial to sentence only some of
the offenders, because the court could not know the details of the involvement of each offender, and therefore could not sentence
in a proportionate and separate manner.
On 22nd January 2001, the learned Chief Magistrate adjourned to the 22nd of February for sentencing and said “All the accused who
pleaded Not Guilty, adjourned 22.2.01 mention to set hearing.” The 9th Appellant objected and said: “Submit that sentencing to be
postponed until the trial of the Not Guilty pleas are concluded.” In his written submission, he said that all accused were jointly
charged on the first and second counts, and that sentencing should be postponed to the conclusion of the trial.
The prosecution submitted that the court should proceed to sentencing. In his ruling, the learned Chief Magis said that the accused
had had a right to be tried within a reasonable time and that he would proceed to sentence.
At the hearing of this appeal, the 9th Appellant repeated his submissions, referring to Arch(36th Edition) at p.197. Counsel for the
other Appellants snts submitted that the trial of the remaining defendants was due on the 31st of October 2001, and that some of
the Appellants were now due for release and awaiting sentences in this case. She said that it would be unfair to them to wait for
the result of the trial in the Magistrates Court.
The proper procedure where some of several offenders jointly charged, plead guilty, is to postpone sentencing unti conclusion of the
trial. Ial. In most cases, this will only involve a wait of a few days while the trial is concluded. Archbold (4-174 2000 Ed) has
this to say on the subject:
“In such a case, the proper course is to postpone sentence on the defendant who has pleaded Guilty until the other or others have
been tried and then to bring the defendant who has pleaded Guilty up in the court where other or others have been tried and let all
who have been convicted be dealt with together. By that time, the court will be in possession of the facts relating to all of them
and will be able to assess properly the degree of guilt among them.”
However, this is not an absolute rule. Arc goes on to say:
“Where, however, the judge is of the opinion at any stage of the procee that he is in possession of the material facts and is able
to assess properly the degree oree of guilt as between the particular defendant and the other accused, it is within his discretion
to deal with the defendant at that stage if it is desirable that he should do so.”
In this case the learned Chief Magistrate understandably dt wish to put off sentencing for more than a month, especially when he had
not set a hearinearing date for the trial. He was entitled therefore to sentence provided the facts given to him by the prosecution
gave him enough information about the differing roles of the offenders.
Unfortunately the facts outlined by the prosecution were e in this regard. They suggested that on the 11th of July 2000 all twenty-one
accused over-over-powered the prison officers and forcefully locked them up. At paragraph 4 of the facts, the prosecution said:
“Between the 11th to the 17th of July 2000, some of the above-mentioned accused persssaulted prison officers anrs and were also seen
damaging properties of the maximum security prison .........”
At the Magistrates Court hearing, the learned Chief Magistrate knew very little about the rol the different offenders and the facts
outlined by the pros prosecution could not have assisted him. For this reason, he was in error when he proceeded to sentence without
effecting an enquiry into the individual roles of the offenders. This is particularly so, because the Appellants were not represented
at the trial.
However, the sentences of all the Appellants have now been quashed. The question is whether I should proceed to sentence, or whether
I should remit the question of sentence to the lower court.
Owing to the clear and helpful submissions of counsel for the 1st, 2nd, 4th and 6th Appellants, I now have a much clearer picture
of the differing roles of the Appellants. I accept that none of the Appellants organised the offences in the Maximum Security Prison,
and that they “went along” with the other prisoners because of the peer group pressure at the Prison. I accept also that each has
been disciplined internally for the offences. I do not think that waiting for the trial (which awaits the result of this appeal and
may not proceed on the 31st of October) will assist the court any further in the facts relevant to the differing roles of each Appellant.
Furthermore, a further wait may result in a period of remand pending sentence for some Appellants who have served their sentences.
In all the circumstances I find that I should proceed to sentencing Appellants 1, 2, 3, 5, 6, 7 and 8 without any further delay.
Finally, the sentences delivered in this case must be taken into account by the Magistrate who hears the trial to ensure proportionality
of sentence between the co-defendants.
Sentence
In Jonetani Sereka & Others -v- The State
The learned Chief Magistrate sentenced the Appellants as follows:
Count 1 & p; &&bsp;; -&p; - &bsp; p; &nnsp;  &nbs; 3 years impristnmenp> Coun>Count 2&nt 2 &nbbsp;& &nsp; &nsp; &np;nbsbssp;&nbs; &nbp;&nbp; &nsp; &nbbsp; 18 moimps imprisonmisonment
>ss=Mmal s"ml s"margft: 3t; margin-tgin-top: 1op: 1; mar; margin-bgin-bottomottom: 1">: 1"> Count 4 &nnbsp; &&sp;& p;&;bbspbs-&nnbs; &nbp; &nsp; &bspp&nbssp; &&nbp; 12 months impr imprisonmept
Count 5  & &nbp; nbsp; &&nbs; &nbp; -sp; - &nbp; p; &n&sp;;;&bsp; 12 mont months imprisonmspt
Count 8 &n&nnbsp;;   &nbp;&&nsp; -&nnsp; &bsp; &bsp;&nbss;&nbbs;&nnbsp;&nbp; 12 months imprisonmepan>
Count 9&nt 9 nbsp;  &nbs;&nnbsp& &nbp; sppnbnbsp& &bbsp; &nbs; &nbs; 3 months imprinonmepan>
1"> All the sentences were ordereddered to b to be sere served concurrently to each other, but cutive to the sentences being served for
other matters. In e In effect each Appellant was to serve a total of 3 years imprisonment in addition to the terms they are currently
serving.
Count 1
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Taking into account the gravity of the case, the volatile political situation, and ength of time the prison officers were confined,
I considersider a starting point of 12 months imprisonment to be appropriate. I give credit for the guilty pleas, the discipline
inflicted in prison and the fact that they were not the ringleaders, and give a discount of three months imprisonment. However the
prison officers were confined for six days during the most difficult chapter of Fiji’s history, and the use of weapons in the course
of offending are also aggravating features. This adds two months to the sentence. In all the circumstances, I sentence Appellants
1 to 8, (except for the 4th Appellant) to 11 months imprisonment on Count 1.
Count 2
This count has not been affected by the quashing of the convictions on Count 1. However the appeal is one against severity of sen,
and affects Appellants Nots Nos. 1, 2, 3, 7 and 8. This count is linked to Count 1, in that the weapons were used to unlawfully confine
the prison officers on that Count. I therefore reduce the sentences to 11 months imprisonment, to be served concurrently with the
sentence on Count 1.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Count 4
Only the 7th Appellant was charged on this count, and similarly the prosecution facts are uninformative athe assault. I similarly
rely reduce the sentence to 6 months imprisonment.
Count 5
The 8th Appellant is charged alone on this count, and for the ns given above, I reduce this sentence to 6 months imprisonment.
Count 8
The 7th Appellant is charged on this count and was sentenced to 12 m imprisonment. This is clearly wrong in principle for an act of
damaging a prison uniform. orm. The prosecution said nothing about this count, and the offence appears to have been committed in
the course of the wrongful confinement. This sentence is reduced to 2 months imprisonment for the 7th Appellant.
Count 9
The 8th Appellant is charged on this count. The charge relates to the damaging of a locked at $1,600-00 the property of the Prisons
Department. In . In the circumstances I do not consider this sentence to be wrong in law or manifestly excessive. This sentence stands.
In summary, the sentences are as follows:
Count 2 - 11 months imprisonmont fe the 1st, 2nd, 3rd, 7th and 8th Appellants;
&nbs>
Count 4 - &nnbsp;; &nsp; &nsp; 6 months impmenonfor the 7the 7th Appellant;
Count 5 - &nbbsp;&&bsp;; bspont m iths iths imprisonment for the 8th Appellant;
&nbB> span><
Count 8 - &nnbsp;; &bsp; 2 months imprisonment for for the 7th Appellant;
&nbs>
Count 9 - &nnbsp;;&nbssp;&bsp; bsp; 3 months imprisonfor for ther the 8th Appellant.
All sentences are to be served concurrently with each other but consecutively to the periods of sentence currently being served. This
case highlights the need for the prosecution to outline facts properly on a guilty plea. The facts must refer to each count on the
charge sheet, and on the involvement of each offender. A sentencing court is entitled to full and clear information in order to sentence
effectively and justly.
Nazhat Shameean>
JUDGE
At Suva
2nd November 2001
Haa0058j.01s
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