Baleiloa v State [2006] FJCA 12; AAU0039.2005S (10 March 2006)

IN THE COURT OF APPEAL FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL NO. AAU0039 of 2005S
(High Court Crim. Misc Case No. HAM 41 of 2003S)

BETWEEN:

JOSEFA BALEILOA
Appellant

AND:

THE STATE
Respondent

Coram: Ward, President
Tompkins, JA
Wood, JA

Hearing: Wednesday, 8 March 2006, Suva

Counsel: Appellant in Person
Mr D. Gounder for the Respondent

Date of Judgment: Friday, 10 March 2006, Suva

JUDGMENT OF THE COURT

[1] On 7 September 2003, the appellant pleaded guilty, in the Magistrates’ Court at Suva, to twenty-one counts of robbery with violence, four counts of unlawful use of a motor vehicle, one count of abduction, two counts of house breaking entering and larceny, one count of larceny, and one count of burglary. After recording the convictions, the Magistrate transferred the appellant to the High Court for sentencing, pursuant to s.222(1) (b) of the Criminal Procedure Code, Cap.21.

[2] On 27 January 2005, the appellant was sentenced in the High Court, to 10 years imprisonment on each count of robbery with violence, 5 months imprisonment on each count of unlawful use of a motor vehicle, 4 years imprisonment on the count of abduction, 3 years imprisonment on each count of housebreaking, 12 months imprisonment on the count of larceny, and 4 years imprisonment on the burglary count.

[3] All of these sentences were directed to be served concurrently, although consecutively to an existing sentence of 4 years imprisonment for robbery with violence, which had been imposed in the Magistrates’ Court at Lautoka, and which was to be served concurrently with sentences for lesser terms in relation to offences of unlawful use of motor vehicle, resisting arrest and act with intent to cause grevious harm.

[4] In his original notice of appeal, the appellant only made complaint in relation to the sentence, contending that the sentences, which were imposed on 27 January 2005, should have been adjusted to ensure that they were served concurrently with the pre-existing 4 year sentence. In a subsequent submission, he advanced an additional ground to the effect that his plea of guilty was equivocal having been induced, as the result of pressure. As this fresh ground has been argued it will also be addressed, even though it was not originally raised as a ground of appeal against conviction.

Leave to Appeal

[5] Under s.222 (4) of the Criminal Procedure Code, Cap.21, the appellant has the same right of appeal to this Court as if he had been convicted and sentenced by the High Court. That right is contained in s.21 of the Court of Appeal Act Cap.12, which permits an appeal by an appellant:

"(a) against his conviction on any ground of appeal which involves a question of law alone;

(b) with the leave of the Court of Appeal or upon the certificate of the Judge who tried him that it is a fit case for appeal against his conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact or on any other ground which appears to the Court to be a sufficient ground of appeal; and

(c) with the leave of the Court of Appeal against the sentence passed on his conviction unless the sentence is one fixed by law."

[6] It follows that leave is required in so far as the grounds of appeal sought to be raised fall within (b) or (c). Otherwise there is an appeal of right.

[7] The record in the High Court shows that the appellant first appeared in the High Court on 31 October 2003, and that, on 4 November 2003, Counsel then appearing for him indicated that there would be an application to withdraw the pleas of guilty, upon the basis that he had been pressured by "prison authorities" to plead guilty. Justice Shameem indicated that, if any such application was to be made, then an affidavit would be required, setting out the nature and source of the pressure.

[8] There were several further mentions prior to 4 December 2003, on which date the Court was informed that Legal Aid had been granted, although it was confined to the sentencing proceedings.

[9] On 22 December 2003, the appellant appeared in person. In support of his application he said that the denial of bail had forced him to plead guilty, that the facts did not disclose the offences charged, and that pressure to plead guilty had been imposed, in June 2003 by "investigating" police, two of whom he named. He explained that this had not been disclosed to the magistrate, because he did not understand court proceedings. This was a curious observation in the light of his record of accumulating some forty two convictions, over the preceding five years, which had obviously involved multiple court appearances, on his part.

[10] An affidavit was thereafter provided by one of the police officers named, who denied having dealt personally with the appellant, or having placed him under any pressure to plead.

[11] The application was refused, on 30 December 2003, by Justice Shameem who drew attention to the fact that the delay between June and September 2003, in offering a guilty plea, did not suggest that any effective pressure had been imposed upon him in June, to do so. Additionally, she pointed to the inconsistencies between his earlier account of pressure having been applied by prison officials, and that which was later provided to her of the pressure having come from police, and to the fact that he had been represented by counsel in the Magistrates’ Court, where he had pleaded guilty, after saying that he understood the charges, and agreed with the facts in the court record. She also stated that the facts on the Court record did establish the ingredients of the offences charged.

[12] Whether or not the appellant should have been allowed to withdraw his pleas was a matter within the discretion of the Judge. Any attack on the exercise of that discretion must fail unless there was an error of law or a mistake of fact demonstrated. Ranjeev Kumar v. The State Criminal Appeal No. AAU0014 of 1995S.

[13] Justice Shameem was well placed to assess the appellant’s credibility, and the merits of the case, which he presented. We cannot identify any error of law or mistake in her ruling dismissing the application.

[14] Following that ruling, there were several further appearances in the High Court, in the course of which the appellant was allowed an opportunity to seek legal aid, in order to present a case in mitigation of sentence.

[15] On 23 January 2004, it was announced that he had escaped from custody. On 1 October 2004, he was re-arrested but made an immediate further escape.

[16] He was subsequently rearrested, and thereafter given the opportunity of several adjournments to secure legal representation, in relation to his sentencing.

[17] The sentencing proceedings resumed on 26 January 2005, on which occasion the appellant was represented by counsel. He again agreed to the facts set out in relation to the thirty-six counts which were before the court, and was sentenced on the following day.

[18] In the additional submissions which have been supplied in support of this appeal, the appellant now contends that he had been mistreated by police, at the time of his initial arrest in October 2002, and again at the time of his re-arrest in December 2004, and that this meant that his right to a fair trial was abused, that his admissions in the caution statement were given under duress, and that his pleas of guilty were equivocal, such that his convictions should be set aside.

[19] This is not the case which was presented to Justice Shameem. It was confined to the assertion that the police had told him to plead, because he had already confessed to the crimes.

[20] The appellant should not, in our view, be permitted to raise a new factual case at this stage of the proceedings. If the alleged assaults by the police, of which he complains, did occur, then he had every opportunity to raise them on the application to change his pleas or when he appeared for sentence. No explanation has been given for his failure to do so, and there is no proper basis for the convictions to be set aside.

[21] None of the matters raised can have any relevance for the sentences, which were passed. Having regard to the very bad record of the appellant, the exceedingly serious nature of the offences, some of which involved the use of cane knives or axes and the restraint of victims who were tied up, the number of the offences, the period of 1 year and 2 months between 29 March 2002 and 15 May 2003 in which they were committed, and the significant quantity of the money and property that was stolen, there can be no possible complaint with the individual concurrent sentences which were passed.

[22] Nor can there be any legitimate complaint in relation to the fact that the further sentences are to served cumulatively upon the pre-existing sentence. Where a question arises, in relation to whether later sentences should be served consecutively with existing sentences or cumulatively upon them, the critical issue for the court is whether the overall sentence, including the fact of accumulation, properly reflects the totality of the criminality involved: Pauliasi Bote v. The State Criminal Appeal No. AAU0011 of 2005; and whether that sentence would have been appropriate, had the appellant come before the court for sentence for all of the offences on a single appearance: Manasa Waqa v. The State Criminal Appeal No. AAU0020 of 2002.

[23] Justice Shameem gave proper consideration to those principles, as she did to the relevant aggravating and mitigating circumstances. No error has been shown, the case clearly being one where an accumulation of sentence was warranted, particularly as the offence which attracted the fourth year sentence was an offence of violence, which along with the three other offences, had been committed while the appellant was at large, having escaped from prison while waiting sentence on the charges with which these proceedings were concerned.

[24] Leave to appeal is granted but the appeal is dismissed.

Ward, President
Tompkins, JA
Wood, JA

Solicitors:
Appellant in Person
Office of the Director of Public Prosecutions, Suva for the Respondent