Court quashes sentence, conviction of student caught dating during restrictions

The High Court in Suva yesterday quashed and set aside the conviction and sentence recorded against a 19-year-old tertiary student who was found kissing and hugging her boyfriend at the Suva Seawall during the COVID-19 restrictions last month.

While delivering his judgment, Justice Salesi Temo highlighted Eileen Anderson’s case as an example of cruel and inhumane penalties imposed against those who had breached curfew and social gathering orders.

She was produced in court and convicted on April 22, and ordered to pay a fine of $500 within three months. Justice Temo dismissed the charge against her and did not record a conviction in her name. According to him, the experience of being arrested by Police, interviewed, processed in a Police station, produced in court and processed in the criminal justice system is punishment in itself.

“For a young 19-year-old second year University of the South Pacific student (USP), with no previous conviction, there was no need for any further punishment,” the ruling said.

Justice Temo stated that he had carefully perused the court record and the learned magistrate’s sentencing remarks and it was clear that the constitutional demands of Section 11 (1) of the Bill of Rights was not applied. He said though he was aware of the numerous cases that come before the Magistrates Courts on a daily basis, that was no reason for noncompliance and non-implementation of the constitutional obligation and duty imposed by Section 11 (1).

“As a 19-year-old youth, having a boyfriend is part and parcel of life. She is striving to better her future. She is not in full time employment. Obviously, no means test was carried out.”

He said the Magistrate should have paused before entering a conviction against Ms Anderson and that the prescribed penalties are inappropriate in her case given her social and financial position.

“In State v Eileen Anderson (supra), the learned magistrate paid no attention whatsoever to the requirements of Section 11 (1) of the Bill of Rights in the 2013 Constitution and as a result given the personal and financial circumstances of the accused the learned Magistrate imposed a sentence which was “cruel, inhumane, degrading or disproportionately severe treatment or punishment”, and as a result with respect she erred.”