Nauca v The State [2002] FJHC 106; HAA0016J.20002S (26 April 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0016 OF 2002S
(Nausori Criminal Case No. 34 of 2001)

Between:

JONE NAUCA
Appellant

And:

STATE
Respondent

Hearing: 19th April 2002

Judgment: 26^th April 2002

Counsel: Appellant in Person
Mr M. Korovou for Respondent

JUDGMENT

This is an appeal against sentence. The Appellant was convicted on his plea of guilty on 12^th of July 2001, and sentenced to 2 years imprisonment on the following charge:

Statement of Offence

THEFT CATTLE: Contrary to Section 275 of the Penal Code, Cap. 17.

Particulars of Offence

LAULABA VIO, MIKAELE IRANASAU, PITA TEQE and JONE NAUCA on the 15^th day of January, 2001 at Waimaro, Tailevu in the Central Division, stole three cows valued $600.00 the property of RAJA RATTAN SAMI s/o RANGA SAMI.

The Appellant was the fourth accused in the Magistrates= Court. He now appeals against sentence on the following grounds (which I have summarised):

1. The hearing was wrongly transferred to the presiding Magistrate;
2. A custodial sentence was inappropriate;
3. The cattle were all recovered;
4. The Appellant received only $20.00 for the sale of the cattle;
5. The complainant was willing to reconcile.
   

The charge was filed on the 19^th of January 2001, and the case called before Resident Magistrate Mr Rokotinaviti. He granted bail pending trial to the Appellant. The matter was next called on 30^th January 2001, when the Magistrate ordered transfer to Korovou Magistrates= Court. Thereafter on a number of mention dates (to ascertain the attitude of the complainant, to allow the DPP=s Office to review the file, and finally for change of plea,) either Mr Rokotinaviti, or Mr Nadakuitavuki presided.

On 12^th July 2001, the Appellant pleaded guilty to the charge. The prosecution outlined the facts saying that the complainant was a dairy farmer of Waimaro and that on 16^th January 2001, he checked his cattle and found 7 cows missing. He reported the matter to the police. The Appellant and another accused were interviewed and they admitted selling three cows to a farmer in Namara, Ra, for $200.00. All three cows were recovered and returned to the complainant.

The Appellant admitted the facts, saying that he was a 31 year old Burerua Villager who farmed for his subsistence. The learned Magistrate then said:

AGuilty plea considered. Animals recovered. Cattle theft in Tailevu are on the increase. Court should put a stop to it. Each Accused are hereby sentenced to 2 years imprisonment.@

The transfer

The first ground of appeal is the transfer of the case from Nausori court to Korovou court. No reasons were given for the transfer, but it would appear that Korovou court would be a far better venue for an offence committed in Tailevu.

State counsel referred me to section 47 of the Magistrates= Court as being the appropriate section giving a magistrate powers of transfer. However section 47 is relevant to a case transferred when a magistrate Aceases to act as a magistrate.@ Mr Rokotinaviti did not cease to act, he simply changed the venue to a more convenient court, within his own jurisdiction. Section 42 of the Act therefore applies. That section provides:

AMagistrates= courts shall ordinarily be held at such places as the Chief Justice may direct, but should necessity arise they may also be held at any other place within the limits of their jurisdiction.@

Further section 31 of the Act provides that:

AWhere two or more magistrates are appointed to any Division any such magistrate with such Division may, at any stage of the proceedings, transfer, within the limits of such Division, any cause or matter before him to any other magistrate and such cause or matter shall be commenced de novo, inquired into, tried and disposed of, by any magistrate of competent jurisdiction to whom it has been transferred as if it had been instituted before him.@

The provisions of the Magistrates= Court Act are clear. There was nothing unlawful about the transfer of the case to Korovou court, or about the eventual handling of the case by Mr Nadakuitavuki. There is no substance in this ground of appeal.

As to the appeal against sentence, State Counsel very helpfully referred me to the following cases of cattle theft: Jiuta Lumuni and Apisai Tuitagaloa -v- State Criminal Appeal No. 36 of 1987; Kolinio Sitiveni -v- State Criminal Appeal Nos. 54 & 55 of 1990 and Tadeo Samate -v- The State Criminal Appeal No. 1 of 1997. A perusal of these cases suggests that the courts have invariably imposed custodial sentences for Cattle Theft, and that sentences range (depending on the value of the cattle, any recovery of the cattle, and the character of the accused) from a suspended sentence to a two year term. The maximum term possible under section 275 of the Penal Code, is fourteen years imprisonment.

Unfortunately the learned Magistrate=s sentencing remarks indicate no reasons for the imposition of a 2 year term. Nor is it apparent if any credit was given for the fact that the complainant and the Appellant have reconciled.

Nevertheless, credit was given for the recovery of the animals and the guilty plea. Given the tariff in cattle theft cases, and the failure of the Magistrate to explain why he imposed a sentence at the highest level of the tariff, I consider that the sentence should be set aside. I consider that an appropriate starting point should have been 18 months imprisonment, and that discount ought to have been given for the guilty plea, recovery of the animals, and reconciliation with the complainant, to reduce the sentence by 9 months. The appeal against sentence succeeds. The sentence is reduced to 9 months imprisonment.

I note that the Appellant has already served a considerable portion of his term of imprisonment. This is because the court record was not sent to the High Court for the appeal to be heard until March of this year. The petition of appeal was filed on 27^th July 2001.

The Criminal Procedure Code provides that court records must be sent to the High Court within 28 days of the filing of the petition of appeal. This provision, under section 312(1) of the Code was specifically designed to prevent unjust delays in the hearing of appeals. It is a matter of concern that section 312(1) was not complied with in this case, and that the Appellant has had to suffer prolonged and unjust delay in the hearing of his appeal. The fact that he has been in custody awaiting a hearing date is of particular concern. It is hoped that Magistrates= Court registries will strictly comply with section 312 in future.

Nazhat Shameem
JUDGE

At Suva
26^th April 2002