State v Valetiri [2012] FJMC 165; Case 641.2011 (9 July 2012)

IN THE MAGISTRATE'S COURT
AT NASINU
(Extended criminal jurisdiction of the High Court of Suva)

Criminal Case No: HAC 178 of 2011

(M.C Nasinu No: 641/2011)

STATE

V

MELI VALETIRI

PC Ravi for the prosecution
The accused present and appeared in person

Amendment to the Sentencing Judgement

1] The Accused was sentenced on 18th April 2012 by this court. He was charge for two counts as I mentioned in paragraph two of original judgements. I reproduced those counts for clarity;

CHARGE:

Statement of Offence [a]

First Count

AGGRAVATED ROBBERY: Contrary to Section 311 (1) (a) of the Crimes Decree No. 44 of 2009

Particulars of Offence [b]

MELI VALETIRI with others on the 12th day of June, 2011 at Nasinu in the Central Division stole 1 Alcatel mobile phone valued $300.00, cash of $70.00, taxi meter valued $290.00 and car radio with speaker valued $300.00 all to the total valued $950.00 the property of SURESH SWAMI.

Second Count

THEFT OF MOTOR VEHICLE: Contrary to Section 291 of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

MELI VALETIRI with others on the 12th day of June, 2011 at Nasinu in the Central Division, stole taxi registration number LT 230 valued at $12,000.00 the property of SACHIN VEENU MAHARAJ.

2] But when sentencing was done, he was sentenced for only count number one and the court two was missed out by the court. This was informed by Ms. Talei, Senior Court officer on 02nd July 2012. Further there was a mistyping of paragraph 13 as "Therefore I order this 2 ½ years imprisonment to be run concurrently". However, the accused was sentenced for 4 ½ years for count no 1. It was a typing error of the court.

3] The court considered whether the court is functus Officio or whether the court has a power to amend the original sentence. This is the finding of this court.

4] In Halsbury, Vol. 26 paragraph 556 states that,

"The court has inherent jurisdiction to vary or clarify an order so as to carry out the court's meaning or make the language plain, or to amend it where a party has been wrongly named or described unless this would change the substance of the judgment. The court will treat as a nullity and set aside, of its own motion if necessary, a judgment entered against a person who was in fact dead or a non-existent company or, in certain circumstances, a judgment in default or a consent judgment. Where there has been some procedural irregularity in the proceedings leading up to the judgment or order which is so serious that the judgment or order ought to be treated as a nullity, the Court will set it aside."

5] In common law jurisdictions this rule has been widely applied. In Huddersfield Police Authority v. Watson [1947] 2 All ER 193, 196 Goddard CJ considered this rule under "per in curium" rule.

6] Sri Lankan Supreme Court in the case of JEYARAJ FERNANDOPULLE v. PREMACHANDRA DE SILVA AND OTHERS [1996] 1 Sri Lanka Law Reports 70 held as follows;

"All Courts have inherent power in certain circumstances to revise an order made by them such as –

(i) An order which has not attained finality according to the law or practice obtaining in a Court can be revoked or recalled by the Judge or Judges who made the order, acting with discretion exercised judicially and not capriciously.

(ii) When a person invokes the exercise of inherent powers of the Court, two questions must be asked by the Court

(a) Is it a case which comes within the scope of the inherent powers of the Court?

(b) Is it one in which those powers should be exercised?

(iii) A clerical mistake in a judgment or order or some error arising in a judgment or order from an accidental slip or omission may be corrected.

(iv) A Court has power to vary its own orders in such a way-as to carry out its own meaning and where the language is doubtful, to make it plain or to amend it where a party has been wrongly named or described but not if it would change the substance of the judgment.

(v) A judgment against a dead party or non-existent Company or in certain circumstances a judgment entered in default or of consent will be set aside.

(vi) The attainment of justice is a guiding factor.

(vii) An order made on wrong facts given to the prejudice of a party will be set aside by way of remedying the injustice caused."

7] In line with the above rule, to reach the finality and justice, I consider to amend the sentence as follows;

8] Sentences for robbery of taxi driver range from 4 years to 10 years imprisonment depending on force used or threatened (Joji Seseu v- State [2003] HAM043/03S (10 December 2003); Peniasi Lee v- State [1993] AAU 3/92 (apf HAC 16/91).

9] Sentences for theft range from 1 year to 4 years imprisonment (Charlton Lanyon v. State [2004] HAA 42/04S 4 August 2004).

10] As I noted, this is really an accidental slip and omission of this court. Thus this court has power to amend it. I wish to amend it now itself. I reaffirm the sentence of 4 ½ years imprisonment for count one. I proceed to sentence you on count two. I pick 2 years imprisonment for count two. For aggravating factor that I have mentioned in my original sentencing I increase this by 6 months imprisonment. For your mitigation I reduce it by 3 months. Now your actual sentence is for count two is 2 year and 3 months imprisonment.

11] I also amend paragraph 13 by adding 41/2 years imprisonment instead 2 ½ imprisonment. I delete 2 ½ years sentence.

12] Sentence for count two (2 year and 3 months imprisonment) is also to be run concurrently with effect from original sentencing date (18-04-2012).

13] At all times the original sentence to be read with these amendments.

14] Copy of this amended sentence has been given to the accused and the police prosecution for appeal purposes. Further amendments have been explained to the accused.

15] The Senior Court Officer should notify these amendments to the Commissioner of Prison and amended committal to be issued forthwith.

Summary of Sentence

16] Mr. MELI VALETIRI, you are sentenced to 4 ½ years imprisonment for count one and two years 3 months imprisonment for count two. These sentences are to be activated with effect from 18-04-2012. Further, your sentences are to be run concurrently along with other operative sentences.

17] 28 days to appeal.

On 09th July 2012 at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate