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State v Vetiduadua [1995] FJHC 90; HAJ0001d.1995s (12 May 1995)

IN THE HIGH COURT OF FIJI
AT SUVA
REVISIONAL JURISDICTION

REVISION NO. HAJ0001 OF 1995

In the Matter of Case No.183/95 in the
Magistrates Court at Suva

Between

THE STATE
Complainant

And

JESE VETIDUADUA
Defendant

Counsel: Mr. Hook for Complainant
Defendant in person

Hearing: 8th & 12th May 1995
Decision: 12th May 1995

ORAL DECISION OF PAIN J.

This case raises the interesting issue of the powers for rectification of an order or sentence made without jurisdiction in the Magistrates Court.

Generally a Magistrate is functus officio when a defendant has been convicted and sentenced and the Magistrate cannot re-open or deal further with the case (See S (an infant) by Parsons v Recorder of Manchester & ors. 1971 AC 481).

But what if the Magistrate has acted without jurisdiction? Can a defective order or sentence be rectified or must it be removed into a superior court for correction?

It may be that if the Magistrates Court acts without jurisdiction then the order or sentence is a nullity. The Court may therefore be competent to exercise a different jurisdiction to the one it purported to exercise on the first occasion. (See for instance R v Kent Justices ex parte Machin (1952) 36 Crim. App. R 23 and Bannister v Clarke 1920 3 KB 598).

In England the position has been completely clarified by Section 142 of the Magistrates Court's Act 1980 which gives the Magistrate specific statutory power to re-open a case to rectify a mistake.

As far as I am aware there are no decisions in this country determining this issue. Nor has the matter been argued in this case. In the circumstances (and particularly in the absence of legal argument and any empowering legislation), it is prudent to deal with the matter under the revisionary powers given to this Court by Section 325 of the Criminal Procedure Code.

The Defendant was convicted in the Magistrates Court on the 3rd March 1995 on charges of Burglary & Larceny. He represented that he was 16 years of age and this was not disputed by the police. The Learned Chief Magistrate sentenced the Defendant under the provisions of the Juvenile Act by placing him under the care of the Director of Social Welfare until he attained the age of 17 years.

It subsequently transpired that the Defendant is l8 years of age having been born on the 15th April 1977. The Learned Chief Magistrate considered that he was functus officio. This Court therefore called for the file to review the sentence.

At the hearing before me the Defendant confirmed his birth date and age. He was therefore over the age of 17 years at the time he committed the offence and at the date of sentencing. Accordingly he was not subject to the provisions of the Juvenile Act and the order made thereunder is a nullity. It is appropriate for this court to quash that order and impose an appropriate sentence.

Burglary accompanied by Larceny is a serious offence and in this case property to the value of $731.00 was taken. Very little has been recovered. A co-defendant who was aged 21 years and had a previous conviction for theft was sentenced to 12 months imprisonment. This Defendant is only l8 years of age and appears to have had a disadvantaged background. I would have expected that supervision was called for. However, he was interviewed by the Probation Officer and the Probation Officer does not recommend probation. In the light of that recommendation it is not a sentence that I would impose.

A sentence of imprisonment was imposed on the Defendant's co-offender. In all the circumstances, I see no alternative to a prison sentence for this defendant. The only question is the length and whether or not that sentence should be suspended. I intend to fix the term at 9 months imprisonment, taking into account the period that the defendant has spent in custody waiting for this matter to be resolved. However, in view of his age, the time he has already spent in custody, and the fact that if he is not a first offender, he has virtually no criminal history, I will suspend that sentence. It will be suspended for a period of 18 months.

Accordingly I make the following orders on revision pursuant to Section 325 of the Criminal Procedure Code.

1. The order made in the Magistrates Court placing the Defendant under the care of the Director of Social Welfare, is quashed.
   
2. In substitution therefore on the charges of Burglary and Larceny, the Defendant is convicted and sentenced to 9 months imprisonment, suspended for a period of l8 months.
   

JUSTICE D.B. PAIN

HAJ0001D.95S