IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Miscellaneous Case No.: HAM 26 of 2012

BETWEEN:

MOSESE TUILAGILAGI
Applicant

AND

THE STATE
Respondent

Counsel : Applicant in Person
 Mr. Bulamainaivalu for Respondent	

Date of Ruling :  16th March 2012

RULING

1.	In Case No. 1301 of 2011 in the Magistrates Court at Suva, the applicant abovenamed was sentenced to 9 months imprisonment on 23/08/2011 for Absconding Bail contrary to section 26 (1) of the Bail Act
 
2.	Thereafter in case no. 202 of 2008, on 21/11/2011, the applicant was sentenced to 6 months imprisonment for default of payment of fine, imposed on him for the offence of Driving a motor vehicle whilst under the influence of drinks or drugs contrary to sections 102 (1) and 114 of the Land Transport Act 35 of 1998.
3.	In the sentencing judgment dated 21/10/2011, which was activated on 21/11/2011, the Learned Magistrate has written the case number as criminal case 202 of 2010. However, on perusal of the original court record I found the correct case number as 202 of 2008.

4.	In the above case number 202 of 2008, when the Learned Magistrate imposed the 6 months imprisonment period for non payment of fine, in her judgment her Worship has not directed whether the said sentence should run consecutively on any uncompleted sentence imposed on the applicant or not.

5.	Now the issue before this court is to decide whether the sentence of imprisonment of 6 months imposed in case number 202 of 2008 dated 21/11/2011 should run concurrently with the 9 months imprisonment sentence imposed in case no. 1301/2011 or should run consecutively.

6.	State filed submission stating that it should run consecutively. I considered the submission of State and the relevant provisions of the Sentencing and Penalties Decree 2009.

7.	In terms of section 23 (1) of the Sentencing and Penalties Decree 2009, a sentence of imprisonment commences on the day that it is imposed.

8.	Sections 22 (1) – (3) states:

(1)	Subject to sub-section (2), every term of imprisonment 
imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of imprisonment. 

(2)	Sub-section (1) does not apply to a term of imprisonment 
imposed— 

(a) 	in default of payment of a fine or sum of money; 
(b) 	on a prisoner in respect of a prison offence or as a result of an escape from custody; 
(c) 	on a habitual offender under Part III; 
(d) 	on any person for an offence committed while released on parole; or 
(e) 	on any person for an offence committed while released on bail in relation to another offence. 

(3)	Every term of imprisonment imposed on a person in default of payment of a fine or sum of money shall, unless otherwise directed by a court, be served — 

(a) 	consecutively on any uncompleted sentence imposed on the person in default of payment of a fine or sum of money; but 

(b) 	concurrently with any other uncompleted sentence imposed on that person. 

9.	Therefore in terms of section 22 (1) of the Sentencing and Penalties Decree, the general rule is, unless the court directs otherwise every term of imprisonment imposed should be served concurrently with any uncompleted sentence of imprisonment. However, in terms of section 22 (2) (a), this general rule does not apply to a term of imprisonment imposed in default of payment of fine.

10.	The rule that should apply to a term of imprisonment imposed in default of payment of a fine is clearly enumerated in section 22 (3) of the Decree.

11.	In this instance, the uncompleted sentence referred to in sections 22 (3) (a) and (b) is the sentence of 9 months imprisonment imposed in case no. 1301/2011 for Absconding bail. The 9 months imprisonment imposed in the said case was not for default of payment of fine. Therefore the relevant provision applicable to this instance is section 22 (3) (b) of the Decree, which says:

"concurrently with any other uncompleted sentence imposed on that person" 
"Any other" means any uncompleted sentence imposed on the person in default of payment of fine mentioned in section 22 (3) (a) of the Decree.

In his submission filed, the counsel for State has misconstrued the relevant section 22 of the Sentencing and Penalties Decree 2009.

12.	Therefore I find that the sentence of imprisonment for 6 months imposed in case number 202 of 2008 should run concurrently with the uncompleted sentence of imprisonment for 9 months in case no. 1301 of 2011. Therefore the sentence of 6 months imprisonment in case number 202/2008 should start to serve from 21/11/2011, the date on which the sentence was activated in the Magistrate's Court.

Priyantha Fernando
Judge

At Suva
Friday 16th March 2012