State v Tugi [2022] FJHC 271; HAA05.2022 (3 June 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO. HAA 05 OF 2022

BETWEEN:
THE STATE
APPELLANT

A N D:
SIMIONE TUGI
RESPONDENT

Counsel: Ms. S. Shameem for Appellant
Mr. T. Varinava for Respondent

Date of Hearing: 19^th April 2022

Date of Judgment: 03^rd June 2022

J U D G M E N T

1. The Respondent was charged in the Magistrate’s Court sitting in Suva with one count of Buying Minors Under the Age of 18 years for Immoral Purposes, contrary to Section 227 (1) (b) of the Crimes Act. The Respondent pleaded guilty to the said offence on the 28th of January 2021. The learned Magistrate then sentenced the Respondent on the 17th of December 2021 to thirty months’ imprisonment with a non-parole period of twenty-four months. Aggrieved with the said sentence, the Appellant filed this appeal on the following grounds inter alia;

GROUNDS OF APPEAL

1. That the Sentence imposed by the learned Magistrate is manifestly lenient given the tariff set in other similar offence; and
   
2. The learned Magistrate erred in law and fact when he failed to provide reasons for fixing the non-parole period so close to the head sentence.
   
2. During the hearing, the Court requested the Appellant to consider whether the Summary of Facts tendered in the Magistrate’s Court has revealed the main elements of the offence charged. The learned Counsel for the Appellant then made an application to include an additional ground of appeal stating that the Summary of Facts has not disclosed the main elements of the offence; hence, the conviction entered by the learned Magistrate cannot be stand. The learned Counsel for the Respondent conceded this ground, stating that the Summary of Facts has not disclosed the main elements of the offence.
   
3. Section 227 of the Crimes Act defines the offence of Buying a Minor under the age of 18 years for Immoral Purposes:
   

A person commits an indictable offence (which is triable summarily) if he or she buys, hires or otherwise obtains possession of any minor under the age of 18 years with intent that the minor shall at any age be employed or used for the purpose of—

1. prostitution; or
2. illicit sexual intercourse with any person; or
3. for any unlawful and immoral purpose or knowing it to be

likely that the minor at any age will be employed or used for any such purpose.

Penalty — Imprisonment for 12 years.

4. Accordingly, the main elements of the offence are that:
   
   1. The Accused,
   2. Buys, hires or otherwise obtain possession of the minor,
   3. With the intention to employ or use the minor for the purpose of
      
      1. prostitution; or
      2. illicit sexual intercourse with any person; or
      100. for any unlawful and immoral purpose or knowing it to be likely that the minor at any age will be employed or used for any such purpose
           
5. To complete the offence, the Accused must buy, hire, or obtain the possession of the minor with the intention to employ or use the said minor for one of the purposes as stipulated under Section 227 (1) (a), (b) and (c) of the Crimes Act. It is not necessary to actually use or employ the minor for any of those purposes, but it suffices to have such an intention at the time of obtaining the possession of the minor.
   
6. Oxford Dictionary of Law defines possession as:
   

“Actual control of property combined with the intention to use it, rightly or wrongly, as one’s own”.

7. The Black’s Law Dictionary defines “ possession” as:
   

“The fact of having or holding property in one’s power; the exercise of dominion over property. The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object”

8. Accordingly, possession means intentionally having someone in custody or under control to the exclusion of others. This definition includes intentionally having someone in some place to which the person has access and capacity to get physical custody or control of that person.
   
9. Section 227 (1) of the Crimes Act, has further stipulated the mode of obtaining the possession of the minor, where it states that “buying, hiring or otherwise obtains the possession”. The purpose of the offence under Section 227 of the Crimes Act is to punish the offenders who buy, hire or otherwise obtain the possession of minors under the age of 18 years intending to employ or use them for immoral purposes as stipulated under the said section. Whereas Section 226 of the Crimes Act intends to punish the offenders who sell minors for immoral purposes.
   
10. Black’s Law Dictionary , 13th Edition defines “buy” that:
    

“The act or an instance of buying. The acquisition of an interest in real or personal property by sale, discount, negotiation, mortgage, pledge, lien, issue, reissue, gift or any other voluntary transaction”

11. Black’s Law Dictionary, 13th Edition defines “hire” that:
    

“To engage the labor or services of another for wages or other payment. To procure the temporary use of property at a set price. To grant the temporary use of services”

12. The Summary of Facts has not explained how the Respondent obtained the possession of the minor. Further, it has not revealed whether the Respondent actually had the possession of the minor with control over her or she was in his custody. It only states that the Respondent sat beside her while she was sitting at a bar and asked her if she wanted to make money, for which the minor had agreed. He had then facilitated or solicited to engage a client for her to provide sexual service for money and kept a commission for that service.
    
13. Accordingly, the Summary of Facts has not revealed the main elements of the offence of Buying Minors under the age of 18 years for Immoral Purposes as stipulated under Section 227 (1) of the Crimes Act.
    
14. Section 174 of the Criminal Procedure Act stipulates the procedure of recording the plea of the accused in the Magistrate’s Court, where it states that:
    
    1. The Substance of the charge or complaint shall be stated to the accused person by the court, and the accused shall be asked whether he or she admits or denies the truth of the charge,
       
    2. If the accused person admits the truth of the charge, the admission shall be recorded as nearly as possible in the words used by the accused, and the court shall convict the accused and proceed to sentence in accordance with the Sentencing and Penalties Act 2009.
       
15. Accordingly, the Court shall first provide the Appellant with the substance of the charge, including the facts pertaining to all essential elements of the offence and allow him to inform the Court whether he admits or denies the truth of the charge. If the Court satisfies that the Appellant accepted the truth of the charge, the Court shall then proceed to convict the Appellant and sentence him accordingly.
    
16. Gates J (as His Lordship then was) in State v Isaia Saukova (2000) 1 FLR 135) has discussed the duty of the Magistrate in respect of recording the plea of guilt, where his Lordship held that:
    

"It is essential that a Magistrate be satisfied that an Accused is admitting facts which amount to all of the legal elements that go to prove the charge in question. Where the Accused is represented by counsel, the Magistrates task is easier. Where the Accused is unrepresented a more onerous burden is cast on the court. But the Magistrate should ensure that the Accused is not simply pleading guilty out of a feeling of remorse for being involved in a result as opposed to causing a result.”

17. As discussed above, the Summary of Facts as outlined has not disclosed the main elements of the offence. Hence, the Respondent had not admitted the truth of the main elements of the offence as charged. Under such circumstances, the learned Magistrate had no jurisdiction to enter a conviction against the Respondent pursuant to Section 174 (2) of the Criminal Procedure Act. I accordingly find the plea of guilt of the Respondent is not unequivocal. In that context, I find there is a reason for me to intervene pursuant to Section 256 (2) of the Criminal Procedure Act.
    
18. This is an allegation involving a minor, and the appeal is allowed based on the legality of the Summary of Facts and the plea entered by the Respondent. Therefore, I do not find any prejudice would cause to the Respondent if this Court orders a re-trial.
    
19. In conclusion, I make the following orders;
    
    1. The Appeal is allowed,
    2. The conviction is quashed and the sentence dated 17th of December 2021 is set aside,
    100. A re-trial is ordered.
         
20. Thirty (30) days to appeal to the Fiji Court of Appeal.
    

.................................................

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

At Suva
03^rd June 2022

Solicitors.
Office of the Director of Public Prosecutions for the Appellant.
Office of the Legal Aid Commission for the Respondent.