Judge Salesi Temo has quashed the conviction of the 19-year-old science student who was convicted by the Suva Magistrates Court for breaching social gathering laws contrary to section 69 of the Public Health Act 1932 and Regulation 2 of the Public Health Act.
Judge Temo also ruled that the Magistrates review the convictions of 47 others who were arrested for breach of COVID-19 restrictions.
In his ruling Justice Salesi Temo set aside the conviction against 19 year old Eileen Anderson and also ordered a review of fines imposed on 47 of the 51 people whose convictions were called before his court.
Judge Temo ruled that the convictions did not take into account the Bill of
Rights, that is, Section 11 – one, as expressed in section 1-D of the 2013 Constitution.
By virtue of Section 11-one of the 2013 Constitution, the convictions should have ensured the the penalties imposed under the terms of the Public Health COVID-19 Response Amendment Act 2020, are not “cruel, inhumane, degrading or disproportionately severe treatment or punishment”, given their personal and financial circumstances.
The 51 people convicted of breach of COVID-19 restrictions as per the Public Health COVID-19 Response Amendment Act 2020 were imposed fines between $300 to $2000 even when the accused did not have the financial means to pay.
The learned Magistrate acknowledged there was no sentencing tariff from the superior courts so the Magistrates Court were left to exercise their sentencing discretion.
As a result It would appear from their point of view that these fines are lenient given that the maximum payable is 10 thousand dollars.
In fact, Justice Temo stated, by not considering the effects of Section 11(1) of the 2013 Constitution, when implementing the penalty enhancement brought about by the Public Health (COVID-19 Response) (Amendment) Act 2020, the learned Magistrates appeared to have
ignored their constitutional obligation and duty, and thus have erred.
In fact, he stated, they had “not cared for the less fortunate based on the values inherent in the Bill of Rights, that is, Section 11(1), as expressed in section 1-D of the 2013 Constitution.
A sentence that disregards and/or ignores the obligations imposed by Section 11-1 of the Bill of Rights is fundamentally flawed, the ruling stated.
The learned Magistrate, he said 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 Eileen Anderson – the 19 year old girl who was arrested for breach of social distancing restrictions, the learned Magistrate imposed a sentence which was “cruel, inhumane, degrading or disproportionately severe treatment or punishment”.
Justice Temo said the Magistrate should have paused before entering
a formal conviction.
Her plea in mitigation revealed informations that would make a sentence under the Public Health Act 1935, as amended, and Regulation 2 of the Public Health (Infectious Diseases) Regulation 2020, be inconsistent with the demands of Section 11(1) of the Bill of Rights of the 2013 Constitution.
Justive Temo stated the Bill of Rights is supreme law and the courts are bound to implement it.
This meant that after a finding of guilt against the accused, the learned Magistrate should have entered the following sentence, that is, “no conviction is recorded and the charge is dismissed.”
The experience of being arrested by police, interviewed and processed in a police
station, brought to court and processed in the criminal justice system, is a
punishment in itself.
For a young 19 year old second year University of the South Pacific student, with no previous conviction, there was no need for any further punishment.