Judge Quashes 49 Cases on Social Gathering Sentences
He ruled that penalties dished out by Magistrates Courts were cruel, inhumane, degrading and, or disproportionately severe
Forty-nine of the 51 cases on social gathering and curfew breaches that were called for a sentencing review were quashed yesterday by High Court Judge Justice Salesi Temo.
Of the other two cases, one was dismissed while the other has been ordered for re-sentencing, following an appeal.
While delivering his judgement, Justice Temo ruled that the penalties dished out by Magistrates Courts were cruel, inhumane, degrading and, or disproportionately severe.
He also said it appeared from the magistrates’ point of view that the fines given were lenient because the maximum fine was $10,000.
“Generally speaking, they (accused) were imposed fines between $300 to $2000 and most of them did not have the financial means to pay the fine. Other sentencing options were not explored,” Justice Temo said.
In a rush to implement the penalty changes brought about by the Public Health (COVID-19 Response) (Amendment) Act of 2020, Justice Temo said the learned Magistrates appeared to have forgotten Fiji’s 2013 Constitution.
He stated that higher penalties must be imposed while taking into account the obligation imposed by
Section 11 (1) of the Bill of Rights. “In my observation of the cases mentioned in Appendix 1, the above treatment of the effect of Section 11 (1) of the Bill of Rights was nonexistent. On this alone, all the sentencing decisions of the learned magistrates in the cases mentioned in Appendix 1 may be ultra vires Section 11 (1) of the Bill of Rights of the Constitution.”
He said the learned magistrates appeared to have ignored their constitutional obligation and duty, thus have erred and had not cared for the less fortunate based on the values inherent in the Bill of Rights. “A sentence that disregards and/ or ignores the obligations imposed by Section 11 (1) of the Bill of Rights is fundamentally flawed.”
He also said the hefty fines imposed on guilty offenders were brought to the court’s attention through the media.Justice Temo said majority of the accused were ordinary members of the public whose economic and financial positions were adversely affected because of the COVID-19 pandemic. “Most were unemployed or subsistence farmers. If they were working, they were not earning that much in a week,” Justice Temo said.
“Most accused’s were family men, supporting children in their families. Most of them pleaded guilty on first call, and most were first offenders.”
He said the learned magistrates were left to exercise their sentencing discretion after acknowledging that there was no sentencing tariff from the higher courts, and as a result fines were given even when the accused did not have the financial means to pay.