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State v Namua [2010] FJMC 157; Criminal Case 1147.2009 (23 July 2010)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 1147 OF 2009

STATE

V

OSEA NAMUA

For Prosecution: Ms. Low P (DPP Office)
For the Accused: Mr. Titoko S.

SENTENCE

1. You, OSEA NAMUA, are here today to be sentenced on plea of guilt on your own accord for the offence of Escaping from Lawful Custody punishable under Sec. 138 of the Penal Code [Cap 17].
   
2. This case initially was fixed for hearing on 25th June 2009. However, on that day your counsel informed the Court that you are pleading guilty to the charge.
   
3. Counsel appeared on your behalf filed mitigation submission in writing and state assisted the Court by filing sentencing submission.
   
4. The offence you were charged with is a misdemeanour and following decisions submitted to the Court by the state counsel had clearly set out the Common Law tariff.
   

a]. Donu v. State [Crim. App. HAA 043 of 2001S], appellant was sentenced to 09 months imprisonment for escaping from lawful custody of Lami police. In her sentencing remarks Shameem J quoted the case of Isireli Rokovucago v. R, [Crim App. 22 of 1980], where the Honourable Chief justice Tuivaga said "I do not think anything would be lost in the way of deterrence against this offence if this range is fixed between six to twelve months imprisonment depending of course, on the particular circumstances of the case. In this way there would not so much disparity of the appearance of disparity in the sentences passed by different Courts. Anything above or below this scale should be regarded as exceptional and can only be justified by its own particular circumstances".

b]. Kaverevere v. State [HAM 0016J.2003S] – Justice Shameem had quashed a 18 months imprisonment term and imposed 08 months imprisonment on the accused and ordered to run consecutive to any other serving term.

c]. Tavurainiqiwa v. State [Crim App. HAA 008 of 2008], Justice Shameem had agreed with the state submission that the tariff for escaping is 6 to 12 months and such sentences should be served consecutively. According to the observations of Shameem J "if terms of imprisonment for escaping were to be made concurrent, there would be no deterrent value in them at all. As a matter of principle, sentences for escaping from lawful custody should have the effect of lengthening the term of imprisonment served."

d]. Delena v. State [Crim Case. HAM 0034 of 2005]- Appellant was sentenced to 06 months imprisonment for escaping and the sentence was ordered to run consecutive. As per Shameem J – "I see no merit in the appeal. The 06 months term of imprisonment was within the tariff for escaping from lawful custody cases. In almost all cases, the sentence must run consecutive to the sentence being served, because there would otherwise be no deterrent value in the sentence".

5. According to the facts [which you have admitted], on 10th September 2009, you have come to the Cell Block at Government Building to inquire about your bench warrant. PC Mudliar had informed you that you have two bench warrants and escorted you to the cell block. There you have informed the officer that you want to consult your lawyer and started moving away from him. When the officer tried to follow you, you have thrown your bag at the officer and had run away from the premises.
   
6. In January 2008, you have been sentenced for a Similar Offence and you admitted having 28 previous convictions out of which 09 are within 10 years range.
   
7. Considering the facts of the case, I set my starting point of sentencing for 12 months imprisonment. To reflect your guilty plea I reduce 03 months and to reflect the aggravating facts I add 02 months to your sentence.
   
8. In mitigation your Counsel drew the attention of the Court to the following facts.
   
   1. You are 31 years old and married with 02 children.
   2. You are a driver and do a casual job to support your family.
   3. You have not wasted the court's time.
   4. You have realised the gravity of the offence.
   5. You are in remand custody for seven months now.
   6. You are remorseful for your actions.
   7. You are seeking for a non-custodial sentence.
      
9. Apart from thee submissions, your counsel drew the attention of Court to the Court of Appeal decision Tuibua v. State [Crim Appeal No: AAU0116 of 2007S] where Lloyd JA, Goundar JA and Hickie JA decided that "In order to assist uniformity and consistency in sentencing for the offence of escape from lawful custody we feel it appropriate to state that a sentence of between 06 and 12 months imprisonment is an appropriate usual tariff for this type of offence. But as with all tariffs for all offences there will always be cases which because of their peculiar facts fall outside the usual permissible range of sentences for this type of offence. In approving the usual tariff we are in no way intending to put a straight jacket on sentencing judges and magistrates".
   
10. To reflect those mitigating facts I reduce 03 months from you sentence. Your sentence now stands for 08 months imprisonment.
    
11. Since you are in remand from 12th January 2010, I order that the 08 months imprisonment term to be operative from that day.
    
12. 28 days to appeal.
    

On this Friday the 23rd day of July 2010

Kaweendra Nanayakkara
Resident Magistrate