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State v Sang [2008] FJHC 17; HAA 127.2008 (12 February 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal Case No : HAA 127 of 2007

BETWEEN:

THE STATE
Appellant

v.

AND:

HOON SANG
Respondent

Ms N. Tikoisuva for the Appellant
Mr. P. McDonnell for the Respondent

SENTENCE

Hoon Sang, you have been convicted of the offence of common nuisance contrary to section 187 of the Penal code. On the 21st of July 2006, being Manager of the Suva law Tennis Club, you played music to a volume that caused inconvenience or annoyance to the public residing at Gladstone Road, Williamson Road and Cakobau Apartments.

I have set out the evidence led at trial in my judgment of the 1st of February 2008. It was that on the 21st of July 2006 there was a party organized at the Club for the National Fire Authority with a live band. The music started at 7.30 p.m. and continued until 1.00 a.m., getting louder and disturbing residents in the area up to Williamson Road. There was evidence that they could not watch television, that they had to change bedrooms to sleep and that the baby of one resident was kept awake. Complaints were made to the Club and to the police.

In mitigation counsel told me that you earn $200.00 a week as Manager, that you pay a residential rent of $300.00 a month and that you are legal guardian to one child (aged 17) who attends secondary school. Also in your favour is that the nuisance has not been repeated and that the licensing conditions for the Suva Lawn Tennis Club have now been changed to prevent such a nuisance occurring again. You are a first offender.

This is the first case of nuisance for sentencing in the High Court and I consider it necessary to deliver a guideline sentence to assist the other courts.

The maximum sentence under section 187 is imprisonment for one year. Section 28(3) of the Penal Code provides that a person liable to imprisonment for an offence may be sentenced to pay a fine in addition to or instead of imprisonment. Section 35(1) of the Penal Code states that where a law does not express a maximum sum to which the fine may extend, the amount of fine is unlimited but shall not be excessive. There is no limit to the sum which the High Court may order but the Magistrates Courts’ jurisdiction is limited to $15,000.00.

There is likely to be a wide variety of types of nuisances prosecuted under section 187. Under the English common law (prior to the enactment of specific types of nuisance) there were four main categories. Firstly, conduct which was dangerous to public safety; secondly, conduct which interfered with comfort, enjoyment or health; thirdly, conduct which is injurious to public morals and decency or public order; and fourthly, conduct in relation to the treatment of dead bodies. Conduct injurious to public safety, would lead to sentences high on the tariff. Conduct which interferes with comfort, enjoyment, or health (as this one is) would lead to sentences at the middle of the tariff with adjustments upwards for serious consequences over a length of time. Conduct in relation to public decency or morals would lead to a wider tariff and the mistreatment of dead bodies to a sentence lower in the tariff with a higher starting point depending on extent and nature of the mistreatment.

The tariff for nuisance affecting comfort enjoyment or health I consider should be six to nine months imprisonment and/or $100.00 to $10,000.00 fine on one count. This tariff would reflect the seriousness of environmental crime, but allow for lower fines in cases of neighbourhood nuisance. Imprisonment should be considered where the accused has shown a disregard for the rights of the public, has deliberately failed to abate the nuisance, or has personally acted in a calculated and willful manner. It may be considered in cases of continuing nuisances which have had a detrimental effect on the health of individuals.

Examples might be the emission of noxious fumes, liquids or gases into fishing waters, or a continuous polluting of drinking waters. Such offences should lead to imprisonment of up to nine months and a fine of up to $10,000.00 on each count.

Conduct in relation to public decency or morals, (traditionally in relation to the running of brothels or child prostitution rings) should lead to a custodial term of between three months to nine months imprisonment and/or a fine of between $1,000 and $5,000.00 on each count depending on the level and extent of the nuisance.

Nuisances involving the mistreatment of corpses should be at the lower end of the tariff of between one to six months imprisonment with fines of between $500.00 to $5.000.00. Much will depend on the purpose of the mistreatment (a misguided prank as compared with witchcraft) and the extent and nature of the mistreatment. These are the suggested guidelines.

Turning therefore to the tariff in your case, I must consider a sentence from within the tariff of six to nine months imprisonment and/or $100.00 to $10,000.00 fine. I consider, and the State agrees, that this is not a case of a custodial sentence. You have taken steps to ensure that the residents in the area have no further cause for complaint. The extent of the nuisance was to create a high volume of noise over a period of about five hours, and there is no evidence of any lasting effects on the health or comfort of any of the residents. There will be no custodial sentence.

In the imposition of the fine, I must consider the seriousness of the offence together with your ability and means to pay. You undoubtedly created a nuisance for neighbours in the area around the Club and caused at least four representatives of the community distress and inconvenience. You are paid a wage of $200.00 a week.

I consider that a fine of $1,000.00 will correctly reflect the offending but will also reflect your limited means.

I sentence you to a fine of $1,000.00 which must be paid within fourteen (14) days, in default six (6) months imprisonment.

[Nazhat Shameem]
JUDGE

At Suva
12th February 2008