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State v Bola [2021] FJHC 383; HAC005.2018 (14 December 2021)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 005 OF 2018

STATE

V

JONATHAN MITIELI BOLA

AUTIKO RALULU VALALAGI

Counsel: Mr M Vosawale for the State

Mr T Varinava for both Accused

Date of Hearing: 14 December 2021
Date of Ruling: 14 December 2021

RULING

[1] The two Accused pleaded guilty to charges of aggravated robbery, resisting arrest and obstructing police officer in the Magistrates’ Court.

[2] Instead of passing sentencing, the learned Magistrate transferred the case to the High Court for sentence citing the tariff of 10-16 years for aggravated robbery based on Wise v State.

[3] Counsel for the State submits that the nature of the robbery the Accused pleaded guilty to is street mugging and that the transfer to the High Court for sentence was made in error because the applicable tariff for street mugging is 18 months imprisonment to 5 years imprisonment and not 10-16 years imprisonment.

[4] The transfer was made pursuant to section 190 of the Criminal Procedure Act. Section 190 states:

(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 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.

[5] It is clear that the power to transfer the case to the High Court for sentence is a discretionary power given to a magistrate. The exercise of discretion to transfer the case to the High Court for sentence must include consideration of all the factors set out in section 190.

[6] In State v Vuluma [2010] FJHC 180; HAC100.2010 (27 May 2010), this Court said at [10]:

The law on transfer to the High Court for sentence has not been changed. The magistrate is obliged to comply with the provisions of section 190 before transferring a case to the High Court for sentence.

[7] According to the court records, the learned magistrate did not direct his mind to any of the matters set out in section 190 of the Criminal Procedure Act before coming to an opinion that the likely sentence of the Accused may be beyond the sentencing jurisdiction of the Magistrates’ Court.

[8] The tarorf for violent home invasion robbery is set out by the Supreme Court in Wise v State [2015] FJSC 7; CAV0004.2015 (24 April 2015). As the Supreme Court sn at [25]:

We believe that offences of this this nature should fall within the range of 8-16 years imprisonment. (underlining mine)

[9] After identifying the aggravating factors at [26], the Supreme Court went on to explain the purpose of tough sentence for violent home invasion robberies at [27]:

It is our duty to make clear these type of offences will be severely disapproved by the courts and be met with appropriately heavy terms of imprisonment. It is a fundamental requirement of a harmonious civilized and secure society that its inhabitants can sleep safely in their beds without fear of armed and violent intruders. (underlining mine)

[10] Clearly, the learned Magistrate erroneously directed his mind to the wrong tariff for the offence to transfer the case to the High Court for sentence. This is a case of street mugging and not a violent home invasion robbery. The applicable tariff for street mugging is set out by the Court of Appeal in Raqauqau v State [2008] FJCA 34; AAU0100.2007 (4 August 2008).

[11] For these reasons, the transfer order of the learned Magistrate is revised and set aside under the revisionary jurisdiction of the High Court.

[12] The case is remitted to the same Magistrate to sentence the two Accused without any further delay.

[13] Both Accused are to appear before the Magistrates’ Court at Suva on 21 December 2021 for sentencing.

. ...........................................
Hon. Mr Justice Daniel Goundar
Solicitors:
Office of the Director of Public Prosecutions for the State
Legal Aid Commission for both Accused