Fiji Magistrates Bench Book - Federal Court of Australia
Fiji Magistrates Bench Book - Federal Court of Australia Fiji Magistrates Bench Book - Federal Court of Australia
Sentencing Format The charge The facts of the particular offending: • If there was a defended hearing, refer to the evidence. • If there was a guilty plea, refer to the prosecution summary of facts. The defence submissions or comments on the facts of the offending Comment on the offence, if relevant: • The seriousness of the particular type of offending. • Whether it is a prevalent offence. • Its impact upon the victim. Note any statutory indications as to the type of penalty to be imposed Identify the tariff and pick the starting point The personal circumstances of the offender Note any prior offending if relevant • How many offences? • How serious? • When committed? • Of the same kind? • Is there a current suspended sentence? The offender’s response to sentences in the past Defence submission and any evidence called by the defence The contents of any reports submitted to the Court Your views summarising the mitigating and aggravating features Scale, then consider the totality of the sentence Pronounce sentence Fiji Magistrates Bench Book April 2004
9 Types of Sentences 9.1 Corporal Punishment A number of offences in the Penal Code stipulate corporal punishment as a sentence. Most of the offences are offences against morality under Chapter XVII and include among others: • rape: ss149,150; • abduction: s152; • defilement: s155, 156; • detention in a brothel: s161; • selling minors for immoral purposes: s162; • buying minors for immoral purposes: s163; • male person living on earnings of prostitution: s166; • conspiracy to defile: s171; and • unnatural offences: ss175, 176. This punishment is provided for under s34 Penal Code and has not been repealed from the statute, but the High Court has ruled that it is unconstitutional: Naushad Ali v State Crim App No. CCCP0001 of 2000L. 9.2 Imprisonment Except for murder, a Court must impose a definite term of imprisonment that must not be more than the maximum term provided for in the statute which creates the offence and not more than the maximum you are empowered to pass: s28 Penal Code. The term actually served is reduced by a third upon entry into prison and may be reduced further by remission for good behaviour (EMP system); and for longer sentences, on parole on the recommendation of the Prisons Parole Board. An offender liable to imprisonment maybe sentenced to pay a fine in addition to or instead of imprisonment: s28(3) Penal Code. Sentences of imprisonment should be served consecutive to existing sentences unless the Court orders the sentences to be concurrent: s28(4) Penal Code. Ideally, imprisonment should only be considered when no other sentence is appropriate. However, given the limited sentencing options that exist, perhaps it is best to be guided by the following questions: • Is it necessary to impose a custodial sentence? Fiji Magistrates Bench Book April 2004
- Page 127 and 128: If, in the course of trial, the evi
- Page 129 and 130: Fiji Magistrates Bench Book April 2
- 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 and 176: These include the following: • pr
- Page 177: 7 Consideration of Other Offences W
- 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
- Page 193 and 194: Fiji Magistrates Bench Book April 2
- 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
- Page 227 and 228: Robbery Section s293(1)(a) Penal Co
Sentencing Format<br />
The charge<br />
The facts <strong>of</strong> the particular <strong>of</strong>fending:<br />
• If there was a defended hearing, refer to the evidence.<br />
• If there was a guilty plea, refer to the prosecution summary <strong>of</strong> facts.<br />
The defence submissions or comments on the facts <strong>of</strong> the <strong>of</strong>fending<br />
Comment on the <strong>of</strong>fence, if relevant:<br />
• The seriousness <strong>of</strong> the particular type <strong>of</strong> <strong>of</strong>fending.<br />
• Whether it is a prevalent <strong>of</strong>fence.<br />
• Its impact upon the victim.<br />
Note any statutory indications as to the type <strong>of</strong> penalty to be imposed<br />
Identify the tariff and pick the starting point<br />
The personal circumstances <strong>of</strong> the <strong>of</strong>fender<br />
Note any prior <strong>of</strong>fending if relevant<br />
• How many <strong>of</strong>fences?<br />
• How serious?<br />
• When committed?<br />
• Of the same kind?<br />
• Is there a current suspended sentence?<br />
The <strong>of</strong>fender’s response to sentences in the past<br />
Defence submission and any evidence called by the defence<br />
The contents <strong>of</strong> any reports submitted to the <strong>Court</strong><br />
Your views summarising the mitigating and aggravating features<br />
Scale, then consider the totality <strong>of</strong> the sentence<br />
Pronounce sentence<br />
<strong>Fiji</strong> <strong>Magistrates</strong> <strong>Bench</strong> <strong>Book</strong> April 2004
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