The appt now appeals against the sentence on the following grounds:
"(i) That the learned Magistrate ern law and in fact in not considering the submissions in mitn mitigation of the appellant.
(ii) That if the learned Magistrate had considered and accepted the Aphe Appellant's submissions in mitigation it did not reflect
in the sentence imposed.
(iii) In the cirances the sentence imposed for 5 years was excessive in alln all the circumstances of the case."
At the hearing of the aplearned counsel for the appellant both in his oral and written submissions made no attempt empt to differentiate
between the grounds of appeal and accordingly it is unnecessary for me to do so in this judgment.
Suffice it to say that the appeal is based on the s proposition that where a court imposes the maximum penaltynalty within its jurisdiction
(in this case 5 years imprisonment) then plainly no allowance has been given for any mitigatory factors that might have been raised on the accused's behalf.
In this l regard the learned trial magistrate had a four (4) page typed submission in mitigattigation which differentiated between mitigating circumstances which relate to the commission of
the offence and those which were personal to the accused. There was also an additional submission which addressed the proper interpretation
to be given to the judgment of the Fiji Court of Appeal in Mohammed Kasim v. The State Criminal Appeal No. 21 of 1993 (unreported) in which the Court said at p.6:
"... we think the time has come for this court to give a clear guidance to the Courts in Fiji generally on this matter. We consider
that in any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment
of seven years ... We must stress, however, that the particular circumstances of a case will mean that there are cases where the
proper sentence may be substantially higher or substantially lower than that starting point."
Then the following paragraph occurs in the Fiji Court of Appeal's judgment (also at 6):
"We should add a brief comment in respect of rape sentences imposed in the Magistrate Court. The maximum sentence in such cases
for a single count is 5 years. It follows that originally a Magistrate should commit a rape offender to the High Court for sentence
unless there are clearly mitigating circumstances."
In the above passages b>Fiji Court of Appeal clearly laid down as a 'starting point' for adultadult offenders, a sentence of 7 years imprisonment "in any rape case without aggravating or mitigating features." In so doing the Court of Appeal did not say that the Magistrate Court henceforth had no jurisdiction or power to impose a sentence in any rape case that came before it thereafter, nor in my view did the
Court of Appeal intend thereby to alter the meaning and discretionary nature of the provisions of Section 222 of the Criminal Procedure Code.
Indeed subsequently the Fourt of Appeal in its judgment in Jonati Cama and Anor v. The State CrCriminal Appeal Nos. 3 & 17 of 1994 (unreported) delivered on 22nd May 1995, clarified the above paragraph when it said at p.5:
"We would add that the statement made by this Court in Kasim's (ibid) that that 'ordinarily' a Magistrate should commit a person convicted of rape to the High Court for sentence unless there are
clearly mitigating circumstances was intended to be understood as relating to cases where such committing is authorised by Section
222 of the Criminal Procedure Code."
Section 222 of the Criminal Procedure Code provides (so far as material for present purposes):
"222(1) Where a person ... is tried by a residentstrate for any offence, and, and such person is convicted by such magistrate
of that offence, ... then, if, on obtaining information as to his character and antecedents, the magistrate is of opinion that they
are such that greater punishment should be inflicted in respect of the offence than the magistrate has power to inflict, the magistrate
may, in lieu of dealing with him in any manner in which the magistrate has power to deal with him, commit him ... to the (High) Court
for sentence ..."
In Cr. App. No. 18 of 1994 (unreported) the FiFiji Court of Appeal in its majority judgment said of the above Section (at p.11):
"This provides for the case of a trhich has proceeded in the Magistrate's Court to the point oint of conviction, and the question
is as to the circumstances in which the Magistrate may then commit to the High Court for sentence. The words used are clear. The
Magistrate may do so if, on obtaining information as to the offender's character and antecedents, he is of the opinion that those
matters (that is the character and antecedents) are such that greater punishment should be inflicted. Clearly this is additional
to the circumstances and gravity of the offence, which have by then been established. The Magistrate must decide as a separate matter
whether the character and antecedents disclose matters which make the offence a more serious one than the details of the offence
itself have already shown."
Clearly a Magistrate Court has a statutory discretion to exercise when considering whether or not to invoke the provisions of Section 222 of the Criminal Procedure Code. Furthermore the discretion is activated (for want of a better term) not by the circumstances of the offence, not by the absence of mitigating factors or even by the existence of a 'sentencing guideline'. It may be invoked only after the Magistrate has obtained information as to the character and antecedents of the offender which satisfies him that greater punishment should be
inflicted for the offence than he has power to impose.
In the present case under appeal the learned trial magistrate appears te been under the misappreheprehension that he had to justify
his refusal to invoke the provisions of Section 222 of the Criminal Procedure Code and, in so doing, incorrectly referred to "defence counsel's plea in mitigation and the accused's general good character" as justification for exercising a jurisdiction he always had namely, to sentence an accused convicted before him.
If say so Section 222<222 may be considered an 'enabling section' which empowers a Magistrate Court in certain defined circumstances, to commit an offender to the High Court for sentence. It is not a 'disabling provision' which must be overcome by the Magistrate Court as a pre-requisite to sentencing an offender, and the learned trial magistrate in so considering the Section erred in the interpretation of his powers.
Of greater signnce however, is the fact that the learned trial magistrate having decided that the case coue could be properly dealt
with within his sentencing powers, then decided, in the face of counsel's plea in mitigation (which he appears to have accepted in part), that the appropriate sentence was the maximum single sentence of imprisonment which he had power to impose.
In this latter regar learned trial magistrate without mentioning the numerous matters raised by counsel both inth in his written and
oral pleas in mitigation merely states:
"This is a serious case which requires a deterrent sentence."
No referis made either to any 'aggravating features' in the case such as, any physicaysical or emotional injuries suffered by the victim; the degree of violence used by the accused;
the relative ages of the victim and the accused; or the circumstances of the offence, which might have justified the imposition of
the maximum sentence allowable.
Needless to say the 'mitigating fes' which satisfied the learned trial magistrate thte that this was a case that could be suitably dealt with within his sentencing powers,
may also, had they been properly considered, have resulted in some reduction (however slight) in the appellant's sentence.
Accordingly the appeal is allowed and the sentence is reduced to one of four (4) years imprisonment with effect from the 2nd of May 1995.
D.V. Fatiaki
JUDGE
At Suva,
7th March, 1996. Haa0001j.96s
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