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Hicks v State [2011] FJHC 455; HAA018.2011 (19 August 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 018 OF 2011

BETWEEN:

DWAYNE HICKS
Appellant

AND:

STATE
Respondent

Appellant in Person
Ms K. Semisi for the State

Date of Hearing: 26 July, 09 August 2011
Date of Judgment: 19 August 2011

JUDGMENT
[Appeal – Escape]

[1] On the 28th July 2008, the appellant was charged in the Magistrates Court at Lautoka with escape and resisting arrest. The charges read as follows:

FIRST COUNT

Statement of Offence

ESCAPING FROM LAWFUL CUSTODY: Contrary to section 138 of the Penal Code, Cap. 17.

Particulars of Offence

DWAYNE HICKS, on the 10th day of July 2008 at Lautoka in the Western Division, escaped from the lawful custody of Prison Officer namely, MOSESE NAKAVULEVU (POC 70816).

SECOND COUNT

Statement of Offence

RESISTING ARREST: Contrary to section 247(b) of the Penal Code, Cap. 17.

Particulars of Offence

DWAYNE HICKS on 25th day of July 2008, at Lautoka in the Western Division, resisted Police Constable Number 2891 Simione Tuivuya, whilst effecting arrest in the due execution of his duty.

[2] To these charges he entered a plea of guilty to the charge of escape but not guilty to resisting arrest. On the 30th July 2009 he entered a plea of guilty to the resisting arrest charge, but on the 4th August 2009 he changed his plea again to not guilty. On the 21st September 2009 he again changed his plea to plead guilty on both counts. He admitted a relevant set of facts and was convicted. He was sentenced on the 4th October 2010 to two consecutive terms of 6 months' for the escape and 9 months for the resisting arrest. These terms were to be served concurrently with an existing sentence he was serving.

[3] The appellant appeals the sentences on the grounds:

(i) That it was harsh and excessive;

(ii) The Magistrate denied him his right to call witnesses;

(iii) That his plea was equivocal;

(iv) He has been punished by the police authorities for his escape, by the loss of time of one month.

[4] The facts admitted below were that on the 10th July 2008, the appellant was serving a sentence for housebreaking entering and larceny at Natabua Prison. On that day he was with several other prisoners in a working party at the President's Bure in Lautoka. At about 1330 hours he escaped. Acting on information, a police party went to Tavakubu on the 25th July 2008 to arrest him. On arrival at the scene the appellant was found and he was approached in order to effect arrest. The appellant started throwing punches and tried to escape. He was overpowered and arrested.

[5] The Magistrate took a starting point of 9 months for the escape and 12 months for resisting arrest and then for "aggravating features" (which he did not disclose) enhanced each sentence by 9 months. For his mitigation (remorse and family responsibilities) which included the plea of guilty he reduced the sentences by 12 months; arriving at the final sentences of 6 months and nine months respectively.

Analysis

[6] The appellant's original appeal filed on 16 May 2011 was an appeal against sentence out of time. With no objection from the State, leave to appeal out of time was allowed on his appeal against sentence. The appellant has never appealed against conviction, nor has he been given leave to appeal his conviction out of time.

[7] The grounds of appeal relating to the reliability of his pleas of guilty and the calling of witnesses go to conviction and are therefore disallowed.

[8] The tariff for escape is between six months and twelve months imprisonment with the upper range being more appropriate to repeat escapers. This appellant is now a repeat escaper but this offence is his first escape. The six months starting point then is totally appropriate. The nine months' starting point for resisting arrest is also appropriate, the range again being between 6 months and 12 months (Mistry [2010] FJMC 19, following Namua [2010] FJHC 584). The range was set by the FJCA in Tuibua – AAU0116.2007.

[9] It is of some concern to the Court that the sentences were enhanced by nine months for aggravating features that were not specified. Even if they were it is hard to understand why they would be apposite to both offences. It is also difficult to discern the elements of resisting arrest from the facts admitted by the appellant. "Turning around and throwing punches" is not strong evidence of resisting without evidence of contact from the punches. It may be that the appellant was just acting out his frustrations at being caught. The summary of facts is inadequate. However "he tried to escape", without detail given is perhaps evidence of resisting arrest and it is on that basis that the charge must be founded. In any event the resistance is minimal and that should be reflected in the sentence.

[10] I quash the sentences passed below and enter new sentences as follows:

I take as a starting point for the escape, an offence which is by far the more serious, a starting point of nine months. There are no aggravating features. For the dubious resisting arrest offence I take a starting point of 3 months. These two offences are all part and parcel of the same incident and the terms are to be served concurrently. The eventual plea of guilty must receive credit and for that two months' is deducted. The term of imprisonment will be one of seven months to be served consecutively to any term presently being served (as stipulated under section 22(2)(b) of the Sentencing and Penalties Decree, 2009).

Paul K. Madigan
JUDGE

At Lautoka
19 August 2011