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State v Durituituba [2024] FJHC 112; HAC1.2024 (23 February 2024)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 1 of 2024

STATE

vs.

INOSI DURITUITUBA

Counsel: Mr. Z. Zunaid for the State
Mr. T. Varinava for the Accused

Date of Ruling: 23^rd February 2024

RULING

1. The Accused has been charged in the Magistrate’s Court at Nausori with one count of Unlawful Cultivation of Illicit Drugs, contrary to Section 5 (a) of the Illicit Drugs Act. The Accused had initially pleaded not guilty to this offence. Subsequent to several adjournments, the Accused changed his plea and pleaded guilty to this offence. The learned Magistrate then transferred the Accused to the High Court under Section 190 of the Criminal Procedure Act for sentence.
2. The Accused alleged in the High Court that he made his plea of guilty as his then-lawyer forced him to do so. I then invited the learned Counsel for the Prosecution to assist the Court in filing written submissions regarding the appropriate procedure for this kind of application. The learned Counsel for the Prosecution then filed a constructive written submission, for which I must extend my gratitude to him.
3. Section 190 (3) of the Criminal Procedure Act outlines the scope of the jurisdiction of the High Court in dealing with a matter sent for sentence under Section 190 (1) of the Act. It states that:

“The High Court shall enquire into the circumstances of the case and may deal with the person in any manner in which the person could be dealt with if the person had been convicted by the High Court.”

4. The Supreme Court of Fiji in Nadan v State [2019] FJSC 29; CAV0007.2019 (31 October 2019) discussed the jurisdiction of the High Court under Section 190 (3) of the Act, where Keith JA found that the scope of Section 190 (3) limit to ascertain the facts found by the Magistrate, as well as any other facts, which may be relevant to the determination of the proper sentence and does not extend to enquire whether the procedure by which Accused was convicted was lawful.

[25] The approach of the High Court. Section 190 of the Criminal Procedure Act 2009 (“the CPA”) provides for the transfer to the High Court for sentencing of a defendant who has been convicted in the magistrates’ court but where the magistrate thinks 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. Section 190 (3) of the CPA provides that in such a case:

“The High Court shall enquire into the circumstances of the case and may deal with the person in any manner in which the person could be dealt with if the person had been convicted by the High Court.”

In the Court of Appeal, Nadan’s counsel argued that the words “enquire into the circumstances of the case” were broad enough to require the High Court to enquire into the procedure by which Nadan was convicted was lawful and to consider whether on the evidence he had been rightly convicted. Two of the judges, Prematilaka JA and Fernando JA, took the view that to do so was not permitted. The third judge, Nawana JA, thought otherwise. Their disagreement did not affect the outcome of the appeal as Nawana JA said that the judge in the High Court had “not observed anything legally objectionable in the conviction by the Magistrate in the process of his enquiry into the circumstances of the case.”

[26] Had there been no other statutory provision on the topic, I would have had no doubt that the majority view was the correct one. The purpose of the provision was to enable a convicted defendant to be sentenced by a court with sufficient powers to pass the appropriate punishment. There is no need for the court to have the power to review the lawfulness or correctness of the conviction in order to determine the proper sentence. It is not as if the defendant cannot appeal to a higher court against his conviction. Section 190 (4) of the CPA provides:

“A person transferred to the High Court under this section has the same right of appeal to the Court of Appeal as if the person had been convicted and sentenced by the High Court.”

In these circumstances, the nature of the enquiry to be carried out by the High Court under section 190 (3) of the CPA is to ascertain the facts found by the magistrate, as well as any other facts, which may be relevant to the determination of the proper sentence. The position might have been different if there had been no other route by which the defendant could question his conviction or the lawfulness of the procedure by which it was reached. But since such a route does exist, the argument that somehow section 190 creates some form of mechanism for the procedure by which the conviction was reached to be reviewed – in addition to an appeal under section 190 (4) – falls away. (emphasis added)

5. Section 190 (5) of the Act has given the High Court power to remit the Accused to the Magistrate’s Court. It states that:

“The High Court, after hearing submissions by the prosecutor, may remit the person transferred for sentence in custody or on bail to the Magistrates Court which originally transferred the person to the High Court and the person shall then be dealt with by the Magistrates Court, and the person has the same right of appeal as if no transfer to the High Court had occurred.

6. It has been held that the jurisdiction of the Magistrate does not become functus officio until the sentence is delivered. (vide; Baleitamavua v State [2007] FJHC 77; HAA 107.2007 (29 November 2007). Thus, remitting the Accused to the Magistrate’s Court would allow the Magistrate, if needed, to consider the complaint made by the Accused with respect to his plea and make appropriate orders.
7. I accordingly remit this case to the Magistrate’s Court under Section 190 (5) of the Criminal Procedure Act.
   

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Hon. Mr. Justice R.D.R.T. Rajasinghe

At Suva
23^rd February 2024

Solicitors
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for the Accused.