Magistrates Court of Fiji

12. It has been noted in Prasad v The State [1994] FJHC 132 (Supra) that criminologists recognise that a prison sentence shouldhe last resort especially where a first offender #160;is concernless the chae charge is very serious or the offender is dangerous and imprisonment is called for in the public interest or in the interest of the offender himself. (Emphasize is mine)> Singh vngh v The The State [2000] FJHC 115; Haa0079j.2000s (26 October 2000) Shameem J went on saying;

"However as a general rule, leniency is shown to first offenders, young offenders, and offenders who plead guilty and express remorse. I believe that in this case, every effort should have been made to keep four of the Appellants out of prison. They were first offenders, they were only 18 years old, and they pleaded guilty on being brought to court. Although the 1st Appellant was not 18 years old, he was a first offender and this offence was clearly an aberration during what appears to be an otherwise blameless life."

14. Nariva v The State [2006] FJHC 6; HAA0148J.2005S (9 February 2006) Shammem J again stressed;

"The courts must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment."

15. In State v Mocevakaca [19JHC 87; [1990] 36 FLR 19LR 19 (14 February 1990) Fatiaki J (As he then was) dealt with similar type of situation. His Lordship stressed on sentencing in young oers. ordship added;

"This court has said before and I say it again that our prisons are already too full of young Fijian men and the courts have a duty to try and reverse that trend wherever it is possible and just. In other words, every effort must be made to keep young first offenders out of prison even I might add at the risk of being lenient.

Needless to say, in the case of young first offenders there can rarely ever be any conflict between the general public interest and that of the offender.

If I may say so society has no greater interest than that its young people should became useful law-abiding citizens and the difficult task of the Courts is to determine what punishment or treatment gives the best chance of achieving that end. The realisation of that objective is the primary and by far the most important consideration in sentencing young first offenders." (Emphasize is mine).

16. This case was a rape case and 5 years imprisonment was quashed and varied. The accused bound over in the sum of $200 with his father as surety, to keep the peace and be of good behaviour for a period of 2 years and released forthwith.

17. In this legal backdrop, in line with the Sentencing Principles, the summary of facts, mitigation and the nature of offences, I select an alternative sentence for this case. Court thinks the accused should be given a second chance to correct himself. The main object of sentencing is to prevent of doing another crime by the offender. This cannot be prevented by jailing first offenders for every crime. Jailing for first offence, for young offender has to be done with cautious. By imprisoning first offender will mingle with other convicted criminals and may change to a serious culprit in future with a trained criminal mind. The court has a prime duty to concern the society as well as the offender hence balancing decision has to be taken. Therefore prison sentence are not suits for every offence and has to be considered case by case basis. Custodial sentence are therefore for incorrigibles, offenders who involved series of cases or repeated offenders. By monitoring and constant supervision will prevent to do another crime by first offender. If the offender can be reformed or rehabilitated and court is satisfied with procedure then an alternative sentence could be adopted.

18. Therefore, I act under section 44 (1) of the Sentencing and Penalty Decree and adjourn proceedings for next 3 years. I further impose following conditions under sections 15(1) (g) and 44(3) of said Decree.

A] The accused is bound over for sum of $ 1000 for next three years to observe peace and good behaviour. If the accused breach any condition, this bond or part of it may be forfeited. In default, accused be sentenced to the prison in appropriate penalty units.

B] In addition to the above bond, the accused should not commit any offence whatsoever during this period. If you committed any offence or breached any condition you will be sentenced for these offences according to the law.

C] The accused is ordered to report last Sunday of every month between 6am to 6pm to Nakasi Police Station during 1 year, last Sunday of every three months during 2 year and last Sunday of every six months during final year (Until expiration of next 3 years). Therefore, the accused is placed on police supervision and he should not change his permanent address during this period of time.

D] The accused is placed under the guidance and supervision of Probation officer of Nasinu. Therefore, Accused should contact the Probation officer forthwith. Accused should follow the Probation officer's advice and probation officer is directed to give timely, appropriate guidance and assistance to the accused.

E] If the accused will comply above conditions, he will be discharged after 3 years under section 44(1) of the Sentencing and Penalty Decree 2009.

19. Copies of this sentence are given to the accused and the police and nature of sentence and police/ probation supervision is explained to the accused. Senior Court officer of this court is directed to issue a copy of this order to Nasinu Probation Officer to facilitate this order. Police and Probation officer of Nasinu are ordered to file report any breach of these condition forthwith (if any).

20. 28 days to appeal.
On 22nd February 2011 at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate