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State v Batiyagona [2010] FJHC 299; HAA009.2010S (13 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO. HAA 009 OF 2010S

STATE

V

SEMI BATIYAGONA

Counsels: Appellant in Person
Ms. R. Drau for the State

Hearing: 14th May 2010
Judgment: 13th August 2010

JUDGMENT

1. On 12th August 2009, in the presence of his counsel, the appellant (accused) pleaded guilty to the following charge:

Statement of Offence

ASSAULT OCCASIONING ACTUAL BODILY HARM: contrary to Section 245 of the Penal Code, Act 17.

Particulars of Offence

SEMI BATIYAGONA, on the 19th day of July, 2009 at Thompson Street, Suva in the Central Division, assaulted SAILASA KAIBAU, thereby occasioning actual bodily harm.

2. The prosecution later read their summary of facts in court. Briefly, they were as follows. After the nightclubs were closed at 1am on 19th July 2009, the complainant and his girlfriend were walking home. The complainant somehow got into a fight with the accused's cousin. The accused intervened to assist his cousin. He punched the complainant to the ground, and kicked his ribs, while he was down. The accused admitted the prosecution's summary of facts.

3. He had one previous conviction. He made a verbal plea in mitigation. He said, he is employed, married with three young children, aged 4, 3 and 1½ years old. He said, he was drunk at the time, and went to assist his cousin, who was at the time being assaulted by the complainant. He said, he pleaded guilty since his efforts at reconciliation was unsuccessful. He asked to be bound over.

4. On 25th August, 2009, the court imposed the following sentence:

(i) accused to pay complainant $50 medical cost, etc;

(ii) accused to pay $50 court cost;

(iii) accused not to re-offend within 36 months; otherwise will be imprisoned for 20 months, if he defaulted;

(iv) accused is conditionally discharged under section 44 of the Penal Code, Chapter 17.

5. Leave was granted to the Director of Public Prosecution to appeal out of time. They appealed against sentence on the following grounds:

(a) That the learned Magistrate erred in principle when she imposed court cost against the respondent in the sum of $50 without stating a reason(s);

(b) That the learned Magistrate erred in law and in fact in conditionally discharging the respondent.

6. Ground 5(a) – Court cost of $50

The Magistrate Court is a creature of statute, that is, the Magistrate Court Act, Chapter 14. In exercising their criminal jurisdictions, learned Resident Magistrates must comply with the provisions of the Criminal Procedure Code, or the Criminal Procedure Decree 2009, after the 1st February 2010. In awarding court cost in criminal proceeding, the relevant statutory authority giving the power to do so, must be briefly mention by the learned sentencing Resident Magistrate, to avoid any doubt in the appeal process. A brief reason must also be included in the sentencing remarks, to inform the appellate court, of why court cost was being imposed. In this case, no reason was given for awarding $50 court cost, and no relevant authority referred to. I therefore agree with the State that the learned Resident Magistrate erred when she imposed court cost of $50 without giving a reason.

7. Ground 5(b) – Conditional Discharge

Section 44(1) of the Penal Code, Chapter 17, reads as follows:

"Where a court by or before which a person is found guilty of an offence, not being an offence for which a fixed sentence is prescribed by law, is of opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order under the Probation of Offenders Act is not appropriate, the court may, with or without proceeding to conviction, make an order discharging him absolutely, or, if the court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding twelve months from the date of the order, and subject to such other conditions, if any, including the money in lieu of goods, as may be specified in such order".

8. Although section 44(1) above was repealed after 1st February 2010, the terms of the section must be read and clearly understood before it is applied to any given situation. Section 44(1) has so many pre-conditions within itself, before it could be applied to a particular situation. For example, "...where a court...is of opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment..." A reading of this pre-condition, would clearly warn a sentencing court that section 44(1) above is inapplicable to the facts of this case. The facts of this case clearly demands punishment for the wrong doer, and therefore the State is correct in complaining that the learned Resident Magistrate erred in conditionally discharging the respondent.

9. Given the above, I allow the State's appeal against sentence, and I issue the following orders:

(i) all the sentence issued by the Magistrate Court on 25th August 2009 are set aside;

(ii) the Respondent (accused) is ordered to pay $100 fine within two weeks, in default, 2 months in prison;

(iii) the $100 fine above is to be paid to the complainant, as compensation.

Salesi Temo
ACTING JUDGE

AT Suva
13th August 2010