Fiji Magistrates Bench Book - Federal Court of Australia

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6 Sentencing Checklist Sentencing is one of the most difficult areas of judicial discretion, so it is important to develop a systematic method of working. The following checklist provides a working guide and is not exhaustive: • Ensure that you have the fullest information: full summary of facts; latest record of previous convictions; any special reports if applicable (welfare/medical/psychiatrist). • Do not sentence on important disputed facts: if the dispute is over material issues, arrange a hearing of facts for sentencing purposes; if the offender declines to have such a hearing, record this before proceeding further. • Analyse the information relating to the offence: the nature of the charge including the maximum penalty; the gravity of the particular facts of the case; aggravating factors; mitigating factors. • Consider the views of the victims and any public concerns as a reflection of the final decision taken: “Courts should take public opinion into account but not pander to it because it may be wrong or sentimental”: R v Sergeant (1975)Crim LR 173; “bulubulu”/full recovery of complainant/compensation paid. • Account for any specific provisions relevant to the offender (juvenile/elderly/ handicapped). • Account for principles or guidelines issued by superior Courts: guideline judgments; circular memoranda issued by the C.J. • Determine which sentencing principle(s) apply/ies: deterrence/prevention/rehabilitation/punishment/restoration. • Account for any mitigating or aggravating factors in respect of the offender and the offending. • Consider the totality of sentence imposed. • Deliver the sentence, with reasons. Using the Sentencing Format below will ensure adequate justification for the sentence. Fiji Magistrates Bench Book April 2004
7 Consideration of Other Offences When deciding the sentence to be imposed, you may, with the consent of the offender and the prosecution, take into consideration any other untried offence of a like character which the defendant admits in writing to have committed: s216(1) CPC. Once sentence is passed in consideration of these other offences, it shall be a bar to subsequent proceedings: s216(3) CPC. 8 Sentencing Format It is suggested that you use the format on the following page when delivering sentence: Fiji Magistrates Bench Book April 2004
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Fiji Magistrates Bench Book Produce
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Table of Contents 1: The Law and Co
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4 Real Evidence 5 Exhibits 6 Oral E
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9: First Appearance 1 General 2 Non
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13: Sentencing 1 Introduction 2 Jur
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PJEP BENCHBOOK PROJECT 2003/2004 TE
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Fiji Magistrates Bench Book April 2
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3.1 The Fiji Constitution The first
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4 The Branches of the State 4.1 The
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Prime Minister The Prime Minster mu
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5 Jurisdiction Jurisdiction is the
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2: FIJI MAGISTRATE’S COURT Fiji M
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1 Introduction The Magistrate’s C
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• make copies of proceedings and
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4.4 Sentencing Jurisdiction Residen
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in suits wherein the validity of an
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By application of a Magistrate Subj
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Also, see State v Peniasi Kata Cr.
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For the defendant to have a fair tr
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An exception for the requirement fo
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4: JUDICIAL CONDUCT Fiji Magistrate
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1 Ethical Principles On appointment
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1.5 “Without Fear or Favour, Affe
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d) Conflict of interest You must di
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1. Prior notice • You should be s
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• Avoid a patronising and or undu
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5: EVIDENCE Fiji Magistrates Bench
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1 Introduction Evidence refers to t
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By definition, documentary evidence
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The distinction between ‘in Court
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Spouses The spouse of the defendant
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7.3 Leading Questions A general rul
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• Sometimes the witness will show
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If the legal burden is borne by the
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In a voir dire hearing, evidence sh
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• ensure that the witness who giv
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8.8 Character Evidence Admissibilit
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6: CRIMINAL RESPONSIBILITY Fiji Mag
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1 Introduction The Penal Code is th
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An honest claim of right is when a
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To raise a defence of accident, it
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It is the defendant who bears the o
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3 Intoxication must also be taken i
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Compulsion by threats Compulsion by
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• Force may include killing the a
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Enabling or Aiding: s21(1)(b) Penal
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Counselling The normal meaning of c
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Withdrawal Sometimes there may be a
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4.3 Accessories After the Fact: ss3
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• At least two persons must agree
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2.2 Endorsing the Criminal Evidence
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• Deal with matters that counsel
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In the unique case of Reginam v Net
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When the alleged offence occurs in
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See Akuila Kuoutawa & R Labasa Crim
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12 Case Management The American Bar
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8: PRE-TRIAL MATTERS Fiji Magistrat
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1 The Criminal Process The followin
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In the event of a person whom such
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If the charge is defective: • ret
Page 125 and 126: 3.2 Warrant of Arrest Notwithstandi
Page 127 and 128: If, in the course of trial, the evi
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Page 131 and 132: 2 Non-Appearance by the Defendant I
Page 133 and 134: Explaining the charge to the defend
Page 135 and 136: For example, on a charge of malicio
Page 137 and 138: Immediate hearing If all parties ar
Page 139 and 140: 10: DEFENDED HEARINGS Fiji Magistra
Page 141 and 142: 1 Magistrate’s Notes A suggestion
Page 143 and 144: 2.4 Plea of Guilty to Other Offence
Page 145 and 146: A convenient test is found in the P
Page 147 and 148: 5.6 Lies If it is established that
Page 149 and 150: 7 Exhibits 7.1 Production Though it
Page 151 and 152: 11: BAIL Fiji Magistrates Bench Boo
Page 153 and 154: 1 Introduction The Bail Act 2002 se
Page 155 and 156: 4.3 Primary Consideration The prima
Page 157 and 158: A “serious offence” is any offe
Page 159 and 160: On the granting of bail, the accuse
Page 161 and 162: 6 Refusal of Bail If bail is refuse
Page 163 and 164: 12: JUDGMENT Fiji Magistrates Bench
Page 165 and 166: 1 A Structured Approach to Defended
Page 167 and 168: 3.1 Judgment Format The format on t
Page 169 and 170: 13: SENTENCING Fiji Magistrates Ben
Page 171 and 172: 1 Introduction At the end of a tria
Page 173 and 174: The judicial act of sentencing need
Page 175: These include the following: • pr
Page 179 and 180: 9 Types of Sentences 9.1 Corporal P
Page 181 and 182: 9.5 Supervision As part of the prob
Page 183 and 184: Police supervision should not excee
Page 185 and 186: 14: APPEALS, REVISIONS AND CASES ST
Page 187 and 188: 1 Appeals The Magistrates’ Courts
Page 189 and 190: Supplementing the record In cases w
Page 191 and 192: The High Court shall hear and deter
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Page 195 and 196: Evidence of age In cases where the
Page 197 and 198: 5 Procedure in Juvenile Courts When
Page 199 and 200: 6 Sentencing of Juvenile Offenders
Page 201 and 202: 6.6 Special Considerations Regardin
Page 203 and 204: 16: COMMON OFFENCES Fiji Magistrate
Page 205 and 206: False Pretences Under s309(a) Secti
Page 207 and 208: False Pretences Under s309(b) Secti
Page 209 and 210: Simple Larceny (Theft) Section s259
Page 211 and 212: The requirement of permanent depriv
Page 213 and 214: Conversion Under s279(1)(a) Section
Page 215 and 216: Conversion Under s279(1)(b) Section
Page 217 and 218: Conversion Under s279(1)(c) Section
Page 219 and 220: Burglary Section s299 Penal Code (C
Page 221 and 222: Abuse of Office Section s111 Penal
Page 223 and 224: Acts Intended to Cause Grievous Har
Page 225 and 226: Defences If the prosecution has pro
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Robbery Section s293(1)(a) Penal Co
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Robbery (with Violence) Section s29
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Rape Section s149 Penal Code (Cap.
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Corroboration In all sexual offence
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Indecent Assault on a Female Sectio
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Indecently Insulting or Annoying a
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Defilement of Girl under Thirteen Y
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Defilement of Girl between Thirteen
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Defilement of Female Under Severe A
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Dangerous Drugs Section s8(b), 41(2
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Causing Death by Reckless or Danger
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Receiving Stolen Property Section s
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Sentence Like Degree The conviction
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