Atik v State [2012] FJCA 63; AAU0043.2010 (11 October 2012)

IN THE COURT OF APPEAL, FIJI ISLANDS
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. AAUOO43 OF 2010
[High Court Criminal Action No. HAC 0045 of 2009]

BETWEEN:

MOHAMMED ATIK
Appellant

AND:

THE STATE
Respondent

Counsel: Appellant in Person
Mr. M. Korovou for Respondent

Date of Hearing: Wednesday, 3rd October, 2012
Date of Ruling: Thursday, 11th October 2012

RULING

1. This is an application for leave to appeal filed by the Appellant against his conviction and sentence.
   
2. The Appellant was charged with the offence of Attempted Murder of his wife contrary to Section 214(b) of the Penal Code (Cap.17).
   
3. He pleaded not guilty and was found guilty after trial when the Assessors returned a unanimous verdict with which the Honourable Trial Judge agreed and was convicted of the said offence of attempted murder and sentenced to 6 years imprisonment with a non parole period of four years.
   
4. The Appellant had at the beginning of the trial sought Legal Aid but subsequently rejected and had decided to defend himself.
   
5. The case against him was that he had struck his wife on the head and hand with a cane knife and the injuries sustained by her were of a serious nature with the injury on the head causing a fracture of the skull.
   
6. His appeal which was by way of a letter was on the basis that:
   
   • (i) That the sentence was harsh and manifestly excessive;
   • (ii) He was prejudiced from lack of legal representation and that his right to a fair trial was violated.
     
7. At the hearing of his application for leave to appeal before me, the Appellant confined his submission to the question of the harshness of the sentence. He submitted to Court certificates regarding Counseling he had received in the prison.
   
8. The State in their submission regarding the sentence imposed on the Appellant submitted that the sentence was not harsh and excessive as it was well within the tariff between 6 to 11 years for the offence of attempted murder.
   
9. Mr. Justice Madigan had in imposing a sentence of six years on the Appellant taken into account the aggravating factors as well as the mitigating factors.
   
10. A person convicted for the offence of Attempted Murder is liable to imprisonment for life and therefore is not a mandatory sentence and not one fixed by law.
    
11. Therefore it is my view that the imposing the sentence of 6 years imprisonment with a non-parole period of 4 years was not harsh or excessive.
    
12. The question regarding prejudice on being unrepresented at the trial was conceded by the State as raising a question of law. The Appellant was not relying on same and the High Court record reveals that he had rejected legal assistance and wanted to defend himself. Further the Appellant was convicted on 10th June 2010 and has already served two years and four months and by the time that his appeal would be taken up (if leave is granted), he would have served a major period of the non-parole period of his sentence. His good conduct as seen in the certificates issued to him regarding counseling would be to his advantage in being released thereafter.
    
13. In Ali v State (2008) FJCA 30 it was stated that where an accused is unrepresented, any statutory defence should be brought to his attention by the Court.
    
14. In Jope Ramalasou v State [2010] FJCA 19; AAU0085/07 (28.5.10) it was stated that the right to counsel is not absolute. Where an accused person is indigent, the right to be provided with representation under the Legal Aid Scheme must depend on the interests of justice. Wherever an accused is unrepresented the court should explain the procedure sufficiently for the accused to be able to conduct his defence.
    
15. In the present case the Appellant had rejected legal assistance and had decided to conduct his own defence. Thereupon the trial Judge had adequately explained the positions available to him regarding defences. In those circumstances there was no possibility that the Appellant was adversely prejudiced by his lack of representation. I am of the view that the application for leave against conviction should not be granted.
    
16. For the above reasons the application of the Appellant for leave to appeal against conviction as well as sentence is refused.
    
17. The order of this Court is:
    

(1) The application for leave to appeal is refused.

(2) The application for leave to appeal against sentence is refused.

Suresh Chandra
Resident Justice of Appeal