IN THE HIGH COURT OF FIJI
(AT LAUTOKA)
CRIMINAL JURISDICTION

REVISIONAL JURISDICTION NO. HAJ0001/95L

BETWEEN:

STATE
APPLICANT

AND:

VASITI NAKAMA
RESPONDENT

Mr S. Senaratne for the Applicant
For the Respondent

Date of Hearing: 1st December, 1995
Date of Decision: 8th December, 1995

DECISION

This is a matter of revision pursuant to Section 323 of the Criminal Procedure Code.

The revision is to be made in respect of a conviction and sentence in the Tavua Magistrate Court of the of the 22nd December 1994 wherein the Respondent VASITI NAKAMA was convicted of Infanticide (Section 205 of the Penal Code). The presiding Magistrate placed the Respondent on probation for 18 months. He also bound over in the sum of $250.00 to keep the peace for 12 months.

The Director of Public Prosecutions has drawn this matter to the attention of the High Court and the Magistrates Court Record has been called for for the purposes of examinations by this Court pursuant to Section 323 of the Criminal Procedure Code.

The provisions of Section 205 of the Penal Code dictate that a person found guilty shall be dealt with as if she had been guilty of Manslaughter of the child.

Any person convicted of Manslaughter is liable to imprisonment for life (Section 201).

Clearly, the presiding Magistrate did not have the power to sentence the respondent unless so sanctioned by the High Court. It appears that the presiding Magistrate was aware of this for the Court Record indicates that the sanction was to have been sought. It appears however, that there was a degree of confusion and sentence was passed without that sanction having been obtained.

The procedural difficulty therefore is that a sentence has been passed on the respondent which should not have been so passed by the Magistrates Court as that Court did not have the jurisdiction so to do.

Section 325 of the Criminal Procedure Code reads

"in the case of any proceedings in the Magistrates Court the record of which has been called for or which ahs been reported for all these, or which otherwise comes to its knowledge, the Supreme Court may –

(a)	in the case of a conviction, exercise any of the powers conferred on it as a Court of Appeal by Section 319 and 320 and may enhance the sentence."

Section 325 (2) reads:-

"No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by a barrister and a solicitor of his own defence."

Sub-section (5) reads:-

"Where an appeal lies from any findings, sentence or order, and no appeal is brought, no proceeding by way of a revision shall be entertained at the incidence of the party who could have appealed."

I should say this. I do not intend to make an order that will prejudice the accused person.

I also consider that the Crown quite properly brought this matter to the Court’s attention by way of a Revision. It was not a matter that could have been appealed as the more appropriate course as I understand that the Crown wishes to correct the irregularity rather than contest the sentence.

Section 319 of The Criminal Procedure Code reads (as is appropriate to the matter).

"(1)	at the hearing of an appeal, the Supreme Court shall hear …… the Director of Public Prosecutions ……….. and the Supreme Court may thereupon confirm reverse or vary the decision of the Magistrates Court ………………

Provided that –

(a)	the Supreme Court may notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it occurs that no substantial miscarriage of justice has actually occurred."

I note in this matter that the presiding Magistrate called for a social worker Report, Hospital Report and the Psychiatric Report.

I note that the Psychiatric Report was dated the 14th July 1994, the examination having taken place sometime between that date and the 17th June 1994.

I note the offence occurred on the 17th February 1994. I noted also that the Medical Officer’s report of 17th February 1994.

I also note the Medical Officer’s report dated the 17th February 1994 indicates that the patient was "depressed looking …………….. also fearful."

I note that the respondent, on being reviewed by the Medical Officer, was found to have breasts which were lactating profusely. These features are mandatory when considering charging a person with Infanticides. The presiding Magistrate quite properly, at the first instance, took these matters into consideration and, on the 7th June 1994 called for a Psychiatric Report. He also called for Social Welfare Officer’s Report (28/7/94).

In short, the Social Welfare report shows that the respondent has little or no family support. It also indicates that she is a very straight forward and honest girl who is extremely remorseful.

I consider that the presiding Magistrate took all proper steps up to the imposition of sentence. It was only that such sentence was passed without referring the matter to the High Court that causes this matter to be brought before this Court.

I am of the view that little would be achieved by vacating the sentence and then bringing the matter back before this Court for sentencing to be passed. One must bear in mind that it has been nearly twelve months since the sentence was passed.

I consider that, in the interest of justice, that I revise the Magistrate’s sentence in so far as, in the cause of my revision pursuant to Section 323 of the Criminal Procedure Code, I note that this Court approves that the sentence handed down by the Magistrate and adopts such sentence as if it were a sentence of this Court.

I do not so by reference to Section 325(1)(a) and Section 319(1) of the Criminal Procedure Code. I examined the file of the Magistrates Court, Tavua and I am satisfied that, although the passing of the sentence was no substantial miscarriage of justice has occurred and accordingly as I have said approved the Magistrate’s sentence.

The respondent, VASITI NAKAMA is thus bound over for the sum of $250.00 to keep the peace for the twelve months.

As she was placed on probation for 18 months under supervision of the Social Welfare Officer at Tavua.

This sentence are effective as from the 22nd of December 1994.

JOHN D. LYONS
JUDGE

HAJ0001D.95L