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State v Qalitabana [2003] FJHC 175; HAC0015J.2003S (12 August 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0015 OF 2003S

STATE

v.

WAISAKE QALITABANA

Hearing: 8th August 2003
Ruling: 12th August 2003

Counsel: Mr. J. Rabuku for State
Accused in Person

RULING

The accused pleaded guilty in the Suva Magistrates’ Court to the following offences:

FIRST COUNT

Statement of Offence

COMMON ASSAULT: Contrary to section 244 of the Penal Code, Cap. 17.

Particulars of Offence

WAISAKE QALITABANA, on the 16th day of June, 2003 at Nasiriti Village, Naitasiri in the Central Division, unlawfully assaulted RO SULI LOMACA.

SECOND COUNT

Statement of Offence

RAPE: Contrary to Sections 149 and 150 of the Penal Code, Cap. 17.

Particulars of Offence

WAISAKE QALITABANA, on the 16th day of June, 2003 at Nasiriti Village, Naitasiri in the Central Division, had unlawful carnal knowledge of [THE COMPLAINANT] without her consent.

After hearing facts and mitigation the learned Magistrate committed the accused to the High Court for sentence to be passed. The matter was listed before me on the 31st of July 2003 and State counsel indicated that he wished to make submissions on the jurisdiction of this court to hear the matter under section 222 of the Criminal Procedure Code. On the 8th of August 2003 he made full submissions on the subject.

He submitted that under section 222 of the Criminal Procedure Code, a magistrate may only commit to the High Court for sentencing if there is something in his character or antecedents which indicates that the jurisdictional limits of the magistrates’ court are insufficient to adequately punish the offender. He said that there was nothing in the accused’s character or antecedents to warrant committal. He is a first offender, and the facts of the case do not disclose any matter relevant to character which is not an element of the offence.

The facts are that the complainant, a 16 year old girl, went to a birthday party on the 15th of June 2003. At 3am the accused asked her and her friend to go away with him to talk, and they agreed. They went to an empty kitchen and he assaulted one girl and she ran away. He then punched the victim and raped her. She yelled and her uncle came to her rescue. He saw her lying on the floor naked. The accused had run away. She then told her uncle what had happened. A medical report showed no physical signs of sexual intercourse. Under caution the accused admitted both offences.

In mitigation the accused said he was a farmer, was married with a pregnant wife and was drunk at the time. He had reconciled with the victim’s parents and they had forgiven him.

The learned Magistrate then ruled:

“The papers for this case be prepared and referred to the High Court for sentencing in view of the seriousness of the offence and under section 222 of CPC.”

State counsel in his clear and comprehensive submissions in this court, referred to the cases of Timoci Momotu –v- State Crim. App. AAU0018 of 1994 and Navuniani Koroi –v- State Crim. App. AAU0037 of 2002 in the Fiji Court of Appeal. The meaning and scope of section 222 of the Criminal Procedure Code were discussed in both.

Section 222 of the Criminal Procedure Code provides:

“(1) Where a person, being not less than seventeen years of age, is tried by a resident magistrate for any offence, and such person is convicted by such magistrate of that offence, or of any other offence of which he is liable to conviction under the provision of this Code 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 in custody or on bail to the Supreme Court for sentence in accordance with the following provisions of this section.

(2) Where the offender is so committed for sentence as aforesaid the following provisions shall have effect, that is to say:-

(a) the Supreme Court shall enquire into the circumstances of the case, and shall have power to deal with the offender in any manner in which he could be dealt with if he had been convicted by the Supreme Court; and

(b) if dealt with by the Supreme Court the offender shall have the same right of appeal to the Fiji Court of Appeal as if he had been convicted and sentenced by the Supreme Court;

(c) the Supreme Court, after hearing counsel for the Crown if he desires to be heard, may remit the accused for sentence, in custody or on bail, to the magistrate which originally committed the accused for sentence, and thereafter the accused shall be dealt with by such court and shall have the same right of appeal as if no such committal to the Supreme Court had been made.”

In Timoci Momotu (supra) the magistrate had referred the matter to the High Court for sentencing without considering the character and antecedents of the accused. The Court of Appeal said (per Quilliam and Thompson JJA):

“There can be little doubt that the reason for the Magistrate deciding to commit was solely the gravity of the offence. If there was in his mind something relating to character and antecedents, then he certainly did not indicate what that was. Moreover, there would appear to be little in those matters to make the difference between committing and not doing so.”

The court went on to say, about the meaning of the words “character and antecedents”:

“It is inevitable that in any rape case the details of the offence will tell the Court something of the character of the accused. If that were all that was necessary to justify committal then there would be no need for the words under consideration in s.222(1) to have been included. We are, however, obliged to give those words some meaning. We can only conclude that they mean information of something additional to the physical details of the offence. A very clear example of this was to be found in R –v- King’s Lynn Justices ex parte Brown (1973) 1 ALL ER 716 where it appeared that two of the accused, although not previously convicted, had been stealing from their employer for years.”

In Navuniani Koroi (supra) the accused was charged with multiple counts of rape. The victim was the accused’s 13 year old daughter. The magistrate refused a prosecution application to commit for sentence to the High Court. The State appealed. The appeal was heard in this court. The decision not to commit was quashed on the ground that there was evidence relevant to character and antecedents in the age of the victim, her relationship to the accused and her resulting pregnancy, to justify committal. In upholding this decision the Court of Appeal said:

“The fact that the rapes were committed on his daughter, that she was a child at the time, that there were more instances than were actually charged, that they resulted in her becoming pregnant, that he was willing to use violence to facilitate the rapes and threats to procure her silence, all supply information about the character of the appellant which was not apparent on the charges.”

In this case there is no such evidence on the court record. The accused is a first offender, this is a single incident of rape and there are no circumstances which reflect on his character, other than the offence itself. The decision to commit was clearly an error of law. Further, no conviction was entered in the Magistrates’ Court.

I therefore order that this case be remitted to the learned Magistrate to proceed with sentencing. I am informed that an amendment to the Criminal Procedure Code is imminent, the effect of which will be that committal for sentence will be possible simply on the basis of seriousness of the offence. Such an amendment is long overdue.

Nazhat Shameem
JUDGE

At Suva
12th August 2003