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Veresa v State [2014] FJCA 153; AAU101.2013 (19 September 2014)

IN THE COURT OF APPEAL
[On Appeal from the High Court]

Criminal Appeal No. AAU101 of 2013
[High Court Case No. HAC 259/13S]

BETWEEN:

LEONE VERESA
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Ms N. Nawasaitoga for the Appellant
Ms P. Madanavosa for the Respondent

Date of Hearing : 18 August 2014
Date of Ruling : 19 September 2014

RULING

[1] The appellant was charged with rape under the Penal Code (now repealed). He elected to be tried in the Magistrates' Court. Following a trial, the appellant was convicted and sentenced to 8 years' imprisonment. The appellant was ordered to serve his sentence in prison in the weekends and in the community in the week days.

[2] The State appealed against the appellant's sentence to the High Court. The State's appeal was advanced on two grounds. The first ground alleged that the learned Magistrate erred in law by imposing a partially suspended sentence. The second ground alleged that the learned Magistrate erred in law by not imposing a non-parole period.

[3] On 4 July 2013, the State's appeal was allowed. On 29 July 2013, the High Court re-sentenced the appellant to 17 years' imprisonment with a non-parole period of 15 years. The appellant now appeals against the High Court's judgment on the following ground:

"The Learned Appellate Judge erred in law when he acted contrary to section 256(2)(e) of the Criminal Procedure Decree by making an order which exceeded the jurisdiction of the Magistrates Court in sentencing the appellant."

[4] The appeal is governed by section 22(1A) of the Court of Appeal Act. Section 22(1A) states:

[5] Under subsection (a), the appellant has a right of appeal if it is shown that his sentence was an unlawful one or was passed in consequence of an error of law by the High Court. Secondly, an appeal can lie under subsection (b) if an immediate custodial sentence was imposed in substitution for a non-custodial sentence by the High Court.

[6] The question is whether the appellant has a right of appeal against the sentence imposed on him by the High Court in its appellate jurisdiction. The right of appeal in criminal cases from the Magistrates' Court to the High Court is conferred by section 246 of the Criminal Procedure Decree. Section 246 includes an appeal against sentence by the Director of Public Prosecutions.

[7] The appellate jurisdiction of the High Court is provided by section 256(2) of the Criminal Procedure Decree. Section 256(2) states:

256(2) The High Court may –

(a) confirm, reverse or vary the decision of the Magistrates Court; or

(b) remit the matter with the opinion of the High Court to the Magistrates Court; or

(c) order a new trial; or

(d) order trial by a court of competent jurisdiction; or

(e) make such other order in the matter as to it may seem just, and may by such order exercise any power which the Magistrates Court might have exercised; or

(f) the High Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

[8] After hearing the appeal, the learned High Court judge adopted an unusual approach. The learned Judge firstly noted that his appellate sentencing jurisdiction was limited to the maximum sentencing jurisdiction of the Magistrates' Court. To overcome this limitation, the learned judge invoked section 190(1) of the Criminal Procedure Decree and transferred the case from the Magistrates' Court to the High Court for sentence. Section 190(1) states:

190 (1) Where –

(a) A person over the age of 18 years is convicted by a magistrate for an offence; and

(b) The magistrate is of the opinion (whether by reason of the nature of the offence, the circumstances surrounding its commission or the previous history of the accused person that the circumstances of the case are such that greater punishment should be imposed in respect of the offence than the magistrate has power to impose–

The magistrate may, by order, transfer the person to the High Court for sentencing.

[9] Section 7(1) of the Criminal Procedure Decree prescribes that a magistrate may not impose a sentence of more than 10 years imprisonment. The learned High Court judge took the view that the circumstances surrounding the commission of rape by the appellant against the victim who was his biological sister justified imposition of a sentence beyond the maximum sentencing jurisdiction of the Magistrates' Court. Since the learned Magistrate did not transfer the case to the High Court for sentence, the learned High Court judge made that order himself pursuant to section 256(2)(e) of the Criminal Procedure Decree. The transfer order was clearly designed to overcome the limitation placed by section 256(3) of the Criminal Procedure Decree. Section 256(3) provides:

256(3) At the hearing of an appeal whether against conviction or against sentence, the High Court may, if it thinks that a different sentence should have been passed, quash the sentence passed by the Magistrates Court and pass such other sentence warranted in law (whether more or less severe) in substitution for the sentence as it thinks ought to have been passed.

[10] Section 256(3) has been interpreted by the appellate courts as restricting the High Court's appellate power to increase a sentence in excess of the maximum sentencing jurisdiction of the Magistrates' Court.

[11] The limitation on the High Court's appellate power to increase a sentence beyond the maximum sentencing jurisdiction of the Magistrates' Court was recently confirmed by the Supreme Court in Livai Nawalu v The State unreported Criminal Appeal No. CAV0012 of 2012 28 August 2013. The Supreme Court at paragraph [24][v] said:

[24][v] The appeal court must, if it substitutes its own sentence on appeal or by way of revision of the Magistrates Court's sentence, keep within the powers of the Magistrates Court. The High Court cannot substitute a Magistrates Court sentence with one which only the High Court can impose. The Magistrate is limited to a maximum term of imprisonment on each offence of 5 years [section 7 CPC] now 10 years [section 7(1(a) CPD] and in total to 14 years where there are two or more distinct offences [section 12 CPC and section 7(2) CPD]. An exception would lie where legislation has specifically enhanced the power of the Magistrate to sentence beyond the usual limit.

[12] The term of 17 years' imprisonment imposed on the appellant by the High Court no doubt exceeds the maximum sentencing jurisdiction of the Magistrates' Court. The process that the High Court invoked to increase the appellant's sentence beyond the maximum sentencing jurisdiction of the Magistrates' Court raises a jurisdictional error of law alone.

[13] I am satisfied the appellant has a right of appeal under section 22 of the Court of Appeal Act and that the appeal is not frivolous.

Result
[14] The appellant may proceed with his appeal against sentence.

................................
Hon. Justice D. Goundar
JUSTICE OF APPEAL

At Suva
19 September 2014

Solicitors:
Office of the Legal Aid Commission for Appellant
Office of the Director of Public Prosecutions for State