H v The State [2006] FJCA 6; AAU0019J.2005S (10 March 2006)

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

Criminal Appeal No. AAU0019.2005
(High Court Criminal Action No. HAC0036.2004L)

BETWEEN:

ALFRED JOHN H.
Appellant

AND

THE STATE
Respondent

Coram: Tompkins, JA
Scott, JA
Wood, JA

Date of Hearing: Friday 3 March 2006

Counsel: Appellant in Person
Ms. Andie Driu with Ms. S. Puamau for the Respondent

Date of Judgment: Friday 10 March 2006

JUDGMENT OF THE COURT

INTRODUCTION

[1] On 4 February 2005 the Appellant was convicted on his own plea by the High Court at Lautoka on six counts of rape and one count of attempted rape. He was sentenced to a total of 10 years imprisonment.

[2] Numerous grounds of appeal were filed by the Appellant who represented himself. On 28 June 2005 the President gave leave to the Appellant to appeal against both the conviction and the sentence. The grounds of appeal may be summarized as follows:

(i) the guilty plea was equivocal;

(ii) the Appellant’s right to a fair trial was breached by the High Court’s refusal to afford him sufficient time to arrange legal representation;

(iii) insufficient consideration was given to the fact that he had already served a period of imprisonment for the same series of offences; and

(iv) the sentence was manifestly excessive.

BACKGROUND

[3] The circumstances leading up to the proceedings in the High Court were both unpleasant and unusual. Owing to the misplacement of a case file and other documents, the precise sequence of events, which in this case are particularly important, cannot definitely be stated.

[4] The Appellant is a married man with four children, two boys and two girls. The elder daughter E was born on 25 October 1983. The younger daughter L was born on 20 August 1987. In October 2002 it was reported to the police that between 1997 when she was aged 14 and 2002 when she was aged 19, the Appellant had regularly and frequently and with force raped his daughter E. It was also alleged that between January 2001, when she was 14, and October 2002 the Appellant had twice indecently assaulted his daughter L and on one occasion attempted to rape her.

PROCEEDINGS IN THE LAUTOKA MAGISTRATES’ COURT

[5] On 18 November 2002 the Appellant was charged with ten offences of rape, attempted rape and indecent assault. On 19 November 2002 he pleaded guilty to one charge of rape against E in November 2002 and two offences of indecent assault against L between January 2001 and October 2002. He pleaded not guilty to the other charges. The guilty plea was accepted and the charge sheet was severed. The file dealing with the three uncontested offences remained numbered 861/02 but a new file containing the seven outstanding charges was then created and numbered 866/02. This was an entirely wrong procedure.

[6] In Bennett [2010] EWCA Crim 601; (1980) 2 Cr. App. R (S) 96 the following was stated:

'It needs to be said, as firmly and strongly as possible that there is an obligation on solicitors, counsel and judges alike to do all within their power to ensure that so far as possible all outstanding charges against a defendant are dealt with in the same court, by the same judge upon a single occasion ...

We wish to make it plain that when a solicitor and a member of the Bar knows that there are other charges against [the Accused] to be dealt with other than those before the Court they should ensure that an application is made ... to have the [Accused] ... put back to be dealt with ... where the other outstanding charges lie.'

[7] Blackstone’s Criminal Practice 1993 at paragraph D9.20 states:

'If an accused enters mixed pleas on a multi – count indictment and the prosecution are not prepared to accept those pleas, sentencing for the counts to which he has pleaded guilty should be postponed until after he has been tried on his not guilty counts.'

[8] The fact that, as in this case, the accused elected to plead guilty in the Magistrates’ Court but elected to be tried in the High Court does not affect the operation of the principle above set out.

[9] After agreeing the facts (the statement of which has been lost) and after presenting his mitigation (the record of which has also been lost) the Appellant was sentenced concurrently to 2 years imprisonment on each of the indecent assaults and 3 years imprisonment for the rape: a total of 3 years imprisonment. Given that the victims of these assaults were the Appellant’s own daughters we are surprised, to say the least, that the Director of Public Prosecutions decided not to appeal against the plainly lenient sentence imposed by the Magistrates’ Court.

THE PROCEEDINGS IN THE HIGH COURT

[10] In April 2003 the Appellant was committed for trial on the remaining seven counts in the High Court. For reasons which we were told are now unknown, the matter did not reach the High Court until 2 November 2004. The information was not filed until 6 December 2004, that is over two years after the disposal of the three earlier charges.

[11] The disgracefully long delay in filing the information combined with the operation of Section 6 (1) (b) of the Prisons Act (Cap. 86) meant that by the time the Appellant came before the High Court to be re-arraigned he had already been released from prison to serve the balance of his 3 year term extramurally. The High Court granted him bail.

[12] On 1 February 2005 the Appellant appeared again in the High Court. He was unrepresented. He told the Court that his lawyer, Mr. Iqbal Khan, had suddenly gone away. Although the eight prosecution witnesses were present, together with the assessors, the matter was adjourned to the following day. The next day there was some mention of another lawyer appearing in the place of Mr. Iqbal Khan and the matter was stood down for half an hour. The record states that at 10.00 a.m. the following occurred:

'10 a.m. - Accused wish to proceed on my own. Wish to change my plea. Do this of my own free will. No pressure.

In presence of assessors.

Accused – wish to change plea

Information put

[7 counts – understand – plead guilty]

Accused: I have pleaded guilty knowing the seriousness of charges to what I have pleaded guilty.'

[13] After the pleas had been recorded a summary of facts was read out. This summary, a copy of which we have been provided with, makes no mention at all of the fact that the Appellant had previously been dealt with for three offences which were part of the same series of offences to which he had just pleaded. Although the fact of the three previous convictions was placed before the Court these previous convictions appear to have been treated as disassociated from and indeed even aggravative of the seven charges now falling to be dealt with. Thus, in his sentencing remarks the judge said:

'The victims were not only your daughters but these acts were not the only ones you committed. You were convicted of similar offences in 2002. The counts to which you have pleaded guilty took place together with numerous other abuses of a similar nature thereby establishing a pattern of behaviour whereby you persistently abuse your daughters especially your elder one over a long period of time.'

[14] The Judge took as his starting point 7 years imprisonment (see Mohammed Kasim v. The State HAA0021.1993 – FCA B/V 94/291). After making an allowance of one year for the guilty pleas and taking into account the circumstances and the manner in which the offences were committed, concurrent sentences of 10, 9 and 3 years imprisonment were imposed.

APPEAL AGAINST CONVICTION

[15] The Appellant’s suggestion that his plea was equivocal by reason of pressure from the Court is inconsistent with the record of what actually occurred. From the extracts of the record set out above it can clearly be seen that the Appellant not only decided to proceed on his own but that he specifically stated that no pressure had been put upon him to change his plea. This ground of appeal fails.

[16] The suggestion that the Court refused to allow the Appellant sufficient time to engage fresh counsel is also contradicted by the record. After Mr. Iqbal Khan withdrew the Appellant was granted an adjournment until the following day. When he again appeared and the possibility of being represented by Mr. Shah was under consideration he was again granted an adjournment. Had Mr. Shah accepted the brief it is highly unlikely that the judge would have refused a further application to enable Mr. Shah to take instructions. As is clear from the record, no further adjournment was requested nor indeed was needed, for the reason that the Appellant changed his plea and decided to represent himself. The second ground of appeal also fails.

APPEAL AGAINST SENTENCE

[17] The final matter is the fairness of the sentencing process and the length of the sentence arrived at. In Waisake Navunigasau v. The State (AAU0019.1996 – FCA B/V 97/531) this court upheld a sentence of 9 years imprisonment imposed in respect of a course of offending very similar to the present case except that only one daughter was involved. The nine years imprisonment was described as entirely appropriate. Given the seven years starting point laid down by this Court in 1994 in Mohammed Kasim (supra) we are satisfied that the sentence imposed in this case for these offences would have been similarly appropriate were it not for the erroneous way in which the series of offences were dealt with by two different Courts on two different occasions.

[18] As we have explained, the right procedure would have led to one sentence 10 years imprisonment being imposed on one occasion for the whole series of offences committed by the Appellant. Had that occurred then the Appellant would have been entitled to serve the last 12 months of the sentence (after one third remission) extramurally. As it is, the failure to follow the correct procedure will benefit the Appellant by entitling him to two such 12 months periods after deduction of two periods of one third remission.

[19] Although the sentence imposed by the High Court was entirely appropriate, given the unsatisfactory way in which two sets of sentences were imposed, we are satisfied that the appeal against sentence must be allowed to take into account the three year period already served by the Appellant when he appeared in the High Court.

RESULT

(1) Appeal against conviction dismissed.

(2) Appeal against sentence allowed: sentence of 10 years imprisonment set aside. Sentence of 7 years imprisonment with effect from 4 February 2005 substituted.

(3) Suppression of names order extended indefinitely.

Tompkins J.A.
Scott J.A.
Wood J.A.

Solicitors:
Office of the Director of Public Prosecutions for the Respondent