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Adama v The State [2002] FJHC 83; HAA0004j.2002b (20 May 2002)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 4 OF 2002
(Taveuni Mag. Ct. Crim. Case No. 328/01)

Between:

PETERO ADAMA
Appellant

and

STATE
Respondent

Appellant in Person
Mr. J. Rabuku for the State

JUDGMENT

This is an appeal against sentence of two years’ imprisonment imposed on the appellant by the Resident Magistrate (E. Rokoika Esq.), Labasa on 12 November 2001 for the offence of Larceny of cattle contrary to section 275 of the Penal Code, Cap. 17 when he and another “between 8^th day of October and the 12^th day of October 2001, at Wainiyaku Estate, Taveuni in the Northern Division stole a bull valued at $400 the property of Wainiyaku Estate”.

The ground of appeal, inter alia, is that the sentence is ‘harsh and excessive taking into consideration the nature of what really happened in this case’.

It is the appellant’s submission that he is single and is a 21 year old farmer from Taveuni. He complains that his co-accused who has a number of previous convictions received two years six months’ imprisonment and he with a clean record received a harsh and excessive sentence of two years imprisonment.

The learned Counsel for the State stated that there are certain unsatisfactory features in this case. He said that the facts were not outlined to the appellant as required by law for him to admit or deny same. All that the record said was “Modus Operandi same as in files 329/01 and 330/01 .....” He felt that because of the procedure adopted by the learned Magistrate the conviction was not right. This appellant was also not involved in 329 & 330/01. He further stated that the sentence of two years’ imprisonment is excessive taking into account his guilty plea and a clean record. He concedes the appeal and even goes on to the extent of saying that the conviction cannot stand.

I agree with Mr. Rabuku that the learned Magistrate fell foul of the requirement of the law when as stated in the Court Record, the procedure of outlining the facts of the case was not followed and this indeed is fatal to the prosecution case for it did not enable the appellant to plead properly to the charge laid against him. It is provided in section 206(1) of the Criminal Procedure Code Cap. 21 that:

“The substance of the charge or complaint shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth of the charge”.

As to why this experienced Magistrate overlooked the correct procedure is hard to understand. It is true that the Magistrates handle a large volume of work but it is no excuse to take ‘short cuts’ so to say which appears to be case here.

Also, there is nothing in the Record to indicate what factors were taken into account in sentencing the appellant. In any case there seems to be disparity in sentencing between the appellant and the co-accused who has a number of previous convictions.

For these reasons I find the conviction unsatisfactory. The conviction is quashed and the sentence set aside.

The appeal is allowed and the appellant is ordered to be released from prison forthwith after having served the sentence since 12 November 2001.

D. Pathik
Judge

At Labasa
20 May 2002