Tukana v State [1991] FJLawRp 3; [1991] 37 FLR 8 (11 April 1991)

[1991] 37 FLR 8

HIGH COURT OF FIJI

WAISAKE TUKANA

v

THE STATE

[HIGH COURT, 1991 (Fatiaki J), 11 April]

Appellate Jurisdiction

Sentence- circumstances in which the sentencing magistrate has power to vary a sentence recently imposed.

A sentence imposed on the Appellant was subsequently varied by the same magistrate. On appeal the High Court HELD: a resident magistrate has power to vary a recently imposed sentence provided the committal warrant has not been signed and after giving the accused an opportunity to show cause in open court why the sentence should not be varied.

Cases cited:

R. v Bachelor (1952) 36 Cr. App. R 64
R. v Grice (1978) 66 Cr. App. R 167
R. v May (198 1) Cr. App. R 165
R. v Nodjoumi (1985) 7 Cr. App. (s) 183

Appeal against sentence imposed in the Magistrates Court.

Appellant in Person
J. Naigulevu for the Respondent

Fatiaki J:

The appellant and 3 others were jointly charged with an offence of STOWAWAY: Contrary to Section 131 of the Marine Act No. 35 of 1986. They all pleaded guilty in the Magistrates Court, Suva and were convicted and sentenced to short terms of imprisonment.

The appellant in particular was sentenced to 3 months imprisonment for the offence and in addition the trial magistrate activated 4 months of an unexpired suspended sentence of imprisonment. The typed court record reveals that both sentences were ordered to be served consecutively making a total of 7 months imprisonment.

The appellant now appeals against the harshness of the sentence imposed and more particularly against the order making the sentences consecutive. At first glance neither ground has any merit at all and might have been summarily dismissed had it not been for the rather unusual form in which the latter ground of appeal was framed and argued by the appellant.

The particular ground reads:

"2 That the sentence delivered by the trial Magistrate is different from the one written on the appellants warrant. He was sentenced to 4 months (activation of suspended sentence) concurrent to the 3 months term, but in his warrant it is written consecutive."

At the hearing of his appeal the appellant appeared in person and confidently presented his appeal in fluent English. He correctly identified the two sentences that comprised his total sentence of 7 months and then asserted that he clearly and distinctly heard the trial magistrate say in open court that the sentences were to be served "concurrently".

In answer to the Court's questions the appellant demonstrated that he understood the essential difference between a concurrent and a consecutive sentence. He also confirmed that in his past criminal record he had received both kinds of sentences and was therefore familiar with them and he calculated that if the sentences were concurrent as he claimed he would be released in two weeks.

Learned State Counsel sought to oppose the appeal on the basis of the typed record available which was entirely understandable but could offer only limited assistance in answering the specific complaints raised by the appellant.

This appeal raises fundamental and thankfully rare issues that may occasionally arise in a criminal context. The first raises the question of the power (if any) of a trial magistrate subsequently to alter or vary a sentence pronounced in open court and secondly, whether such variation may be made (if at all) in the absence of the convicted person.

As to the first, unlike in England, in this country there is no statutory authority contained in either the Magistrates Court Act (Cap. 14) or the Criminal Procedure Code (Cap. 21) which empowers or enables a magistrate to vary or alter a sentence after it has been imposed or pronounced.

Nevertheless the mere pronouncement of a sentence of imprisonment in open court is not the end of the matter. There remains the procedural and necessary requirements that must be complied with before it can be enforced.

In this regard Section 28(5) of the Penal Code (Cap. 17) provides inter alia:

"A warrant under the hand of the judge or Magistrate by whom any person is sentenced to imprisonment, ordering that the sentence be carried out in any prison in Fiji, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of such prison ......... for carrying into effect the sentence described in such warrant."

The sub-section then continues

"....... every sentence shall be deemed to commence from and to include the whole of the day on which it was pronounced."

In this case the appellant's sentence was varied or altered before the committal warrant was issued.

Needless to say in the absence of statutory authority to vary or alter a sentence there is also no laid down procedure to be followed in the event a sentence is altered or varied. It is in that vacuum that this Court must strive to answer the issues raised in this appeal.

In the English case of R. v. Bachelor (1952) 36 Cr. App. R 64 the Court of Criminal Appeal in the absence of any statutory provisions observed at p. 69:

"There is no doubt that a court always has the power to alter a sentence so long as the court is in session. That is to say, at assizes the judge who has passed a sentence may, at any subsequent date till the assizes are completed by the signing of the gaol delivery, alter the sentence, and does so not infrequently when he is actually signing the gaol delivery on the last day of the assizes. So, too, there cannot be any doubt that a court of quarter sessions has power to alter a sentence that it has passed. The sentence is not final and complete until the sentences are signed, which is usually done by the clerk of the peace and not by the recorder. Until the document, which is delivered to the gaoler as recording the sentences of the court, is finally signed, the sentence always can be altered can be increased, which is seldom done, or can be decreased."

In my considered view that passage correctly reflects the common law position that prevailed in England for many years before the power to alter or vary a sentence became incorporated into statute law. For my part I can see no compelling reason that would persuade me to hold that magistrates in this country are not similarly empowered.

Having said that, however, the occasions must be rare when a magistrate who has taken time to consider a sentence will be permitted in the exercise of, this power to alter in a fundamental way a sentence he has already imposed in open court. An accused person is entitled to expect that a lawful sentence he has received in open court will not be altered to his detriment unless it is based on a bona fide mistake.

As was said by the Court of Criminal Appeal (U.K.) in R. v. Grice (1978) Cr. App. R 167 when dealing with a statutory provision which permitted the alteration of a sentence (at p. 172):

"In our view that section was included in order that slips made by the judge can be corrected, be they slips of the tongue or slips of the memory, and it was necessary to have such a provision to enable that to be done. It was quite wrong, in our view, that it should be used as it was in this case, for a fundamental change of mind making a sentence which had been suspended into one which was not."

More recently in R. v. Nodjoumi (1985) 7 Cr. App. (Sentencing Series) 183 the Court in reinstating a sentence that had been increased by alteration said:

"........ trial judges should not after an interval of days, and after thinking over what they have done by way of sentence, decide that their sentence has been over-lenient. In our judgment, the public interest requires that there should be finality in sentencing as far as there reasonably can be. Slips of the tongue and lapses of memory are one thing; ...... but merely increasing the sentence because on reflection the first sentence was not thought to be adequate does not seem to us to be a good reason for varying it."

The short answer to the first issue is that a magistrate in this country may alter or vary a sentence after it has been pronounced in open court and before he signs the committal warrant provided however that the case is recalled in open court and the accused person is given an opportunity to make representations before the altered sentence is pronounced.

As to the second issue, it is a constitutional requirement in this country that (with one inapplicable exception) all proceedings of every court including the announcement of the decision of the court shall be held `in public' and, more particularly, the trial of an accused person shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable.

These constitutional imperatives are further particularised in the provisions of the Penal and Criminal Procedure Codes which govern the trial of all criminal cases in the Magistrate as well as in the High Court.

For instance, Section 206(2) of the Criminal Procedure Code for our present purposes requires a Magistrates Court in which an accused person has pleaded guilty, to convict him and pass sentence upon him. In addition Section 154(1) requires the judgment in even trial in any criminal court to be pronounced in open court and subsection (2) requires the accused person to be in attendance to hear judgment delivered unless his presence has been dispensed with.

Then Section 155 of the CPC, which deals with the contents of judgments provide that where an accused person has pleaded guilty it shall be sufficient if the judgment contains only the finding and sentence and is signed and dated by the presiding officer at the time of pronouncing it.

From the foregoing it is clear that every judgment (which term includes any sentence imposed) must be orally pronounced in open court by the presiding officer in the presence of the accused person so as to enable him to make any representations that he may wish to make in mitigation of sentence.

In this case there is no dispute that the trial magistrate's judgment and sentence were orally pronounced by him in open court in the presence and hearing of the appellant.

Thereafter, if the appellant is to be believed, unbeknown to him the trial magistrate had a change of mind and altered his pronounced order making the sentences concurrent into one making them consecutive thereby increasing his total sentence by 3 months.

It is common ground that the altered sentence was never pronounced in open court and was first publicised in the committal warrant signed by the trial magistrate in which the 3 months imposed for the present offence was made " ...... consecutive to any term". The appellant Claims he protested this "difference" to the escorting officer when he first learnt of the matter at the Suva Prison but to no avail.

If I may say so having perused the original handwritten record of the trial magistrate I am convinced of the truth of the appellant's submissions in this regard. This was not only an unusual ground of appeal but more importantly the appellant's submissions had a ring of truth to them.

Furthermore although there were no sworn affidavits from any of the witnesses that the appellant claims he had, to the event, nevertheless, the original handwritten sentence of the trial magistrate very clearly shows that the word "concurrent" in the order making the sentences concurrent has been deleted and underwritten or overwritten with the word "consecutive".

This has been done four times in the course of the magistrate's handwritten sentence (i.e. once in respect of each of the accused persons including the appellant) and what is more in a sentence which the trial magistrate had presumably considered and written over an intervening weekend.

In R. v. May (1981) Cr. App. R 165 (Sentencing Series) the Court of Appeal (U.K.) in setting aside variations of a sentence effected by the trial judge in chambers and in the absence of the accused, held:

" ...-that a defendant was entitled to be present when sentence was passed and to make representations; he ought not to be deprived of the right of making representations, particularly when it was intended that the sentences already imposed upon him in his presence should be varied by being increased."

In the circumstances although the trial magistrate could have properly altered or varied the sentences after they had been pronounced in open court and before he had signed the committal warrants, his failure to recall the case and publicly pronounce his altered sentences is a procedural irregularity which cannot be condoned by this court.

Accordingly the appeal succeeds and the appellant's sentences are hereby ordered to be served concurrently with effect from the 28th of January 1991. Furthermore in the exercise of this Court's revisional jurisdiction the sentences of the appellant's co-accused in Suva Criminal Case No: 195/91 namely Leone Marawa, Meli Vakamocea and Meli Cama are similarly ordered to be served concurrently with effect from the 28th of January, 1991.

(Appeal allowed; sentence varied)