IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal Case No: HAA 059 of 2008

Between:

SESONI VOLAU
Appellant

And:

THE STATE
Respondent

Hearing: 27th June 2008
Judgment: 4th July 2008

Counsel: Appellant in person
Ms H. Tabete for State

JUDGMENT

The Appellant was charged in 2005, with robbery with violence and unlawful use of motor vehicle. He was sentenced to 6 years imprisonment on his plea of guilty. However, because he was in breach of bail, his sentence was lengthened by 9 months on the 30th of May 2006. He asked for leave to appeal against the sentence imposed on him for being in breach of bail, and leave was granted on the 9th of May 2008.

The Appellant appealed against his sentence on the unlawful use of motor vehicle and robbery with violence charges, and judgment was delivered by this court on the 10th of November 2006. The facts of that case were that the Appellant with four others took a Nissan Cefiro, parked outside the Phoenix Restaurant in Suva, and drove it to the B. Pratap and Sons Supermarket at Moti Street. They then threatened shoppers and the owner of the supermarket, with a cane knife and beer bottles. The value of goods stolen in the course of the robbery was $4882. Personal violence to the owner was threatened. I reduced his sentence from 6 years, to 5 years and 6 months to take into account the 5 months he had spent in remand.

This appeal is against the 9 month term imposed for the breach of bail. The State concedes that 9 months imprisonment was too harsh and relied on the decision of this court in Lepani Varani v. The State Crim. App. HAA 014 of 2007. In that case the appellant was charged with being in breach of bail conditions. He had failed to show reasonable cause for his absence in court. He was sentenced to 9 months imprisonment. I found that because the maximum sentence under section 26(2) of the Bail Act is 12 months imprisonment, the 9 month term imposed was too high in the tariff. This was particularly because the appellant had no previous convictions for offences under the Bail Act. He had 43 unrelated previous convictions. I reduced his sentence to 6 months imprisonment.

In this case the Appellant did not appear in court, and was on bench warrant from 15th December 2005 to 24th March 2006. After he had been sentenced for the two substantive counts the presiding magistrate asked him to explain where he had been between those dates. His answer was "I was doing farming in my village Taci." The learned Magistrate said -: "Your $1000 bail is forfeited in default nine months imprisonment."

The State concedes that this was too long a term. Counsel submits that 6 months would have been more appropriate.

I agree. The Appellant had appeared on all the dates ordered by the court from the 1st of June 2005. Bail had been granted from the 11th of July 2005, and he had continued to respect his bail conditions until the 15th of December 2005. On the 28th of October 2005, judgment had been delivered in respect of his co-accused and a date fixed for hearing for the 15th of December. It was then that the Appellant failed to appear. There is no doubt that he deserved to serve a term of imprisonment for the failure to respect bail, but I consider that 9 months imprisonment is too high. He has no previous convictions for failing to observe his bail conditions. In these circumstances I agree that the term of imprisonment to be served for failing to observe his bail conditions should be reduced to 6 months imprisonment.

To that extent, this appeal succeeds.

Nazhat Shameem
JUDGE

At Suva
4th July 2008