Tagiteci v State [2013] FJCA 27; AAU0075.2010 (20 March 2013)

IN THE COURT OF APPEAL, FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.AAU0075 OF 2010
[High Court Criminal Action No. HAC 31 of 2010]

BETWEEN:

SEKAIA TAGITECI
Appellant

AND:

THE STATE
Respondent

Coram : Chandra RJA
Counsel : Mr V. Daveta for the Appellant
Mr M. Korovou for the Respondent

Date of Hearing : 12 October 2012
Date of Ruling : 20 March 2013

RULING

1. This is an application for leave to appeal against conviction and sentence.
   
2. The Appellant was charged with one count of Attempted Murder contrary to Section 44(1) and 237 of the Crimes Decree No.44 of 2009 in the Magistrate's Court. Thereafter information was filed in the High Court and the Appellant having obtained the services of Counsel pleaded guilty to the charge.
   
3. The Appellant was sentenced to 11 years imprisonment on the 3rd of September 2010.
   
4. The Appellant in his petition of appeal set out grounds (a) to (i) which were against his conviction and ground (j) against his sentence.
   
5. As the Appellant pleaded guilty to the charge, the question arises as to whether he could challenge his conviction especially when he was represented by Counsel.
   
6. The basis on which a conviction can be challenged after an accused has pleaded guilty is to establish that such guilty plea was equivocal or uncertain or that he had entered the plea when he did not have full understanding of the effect of the plea as has been held in many decided cases and has become a well accepted principle. In Tubuitamana v The State [2008] FJCA 14 it was further held that as to whether a plea of guilty is effective and binding is a question of fact to be determined by the Appellate Court ascertained from the record and from other evidence tendered, as to what occurred at the time the plea was entered. The onus is on the Appellant to establish the facts on which the validity of the plea is challenged.
   
7. The Appellant had been represented by Counsel throughout the High Court proceedings and when the case had been taken up on the 30th August the Appellant had stated that he wanted to plead and when the case was taken up on the following day, the 31st of August 2010 he had pleaded guilty to the charge and the learned trial Judge had questioned the Appellant as to whether anyone promised, threatened or induced him to plead to which he had responded in the negative and on being questioned as to whether it was a considered decision he had responded in the affirmative.
   
8. The Appellant had filed an affidavit with new evidence to show that his actions were justified. The facts set out in the affidavit would have been available to him when he was facing his trial and which he could have tendered if he went to trial, but he had on his volition pleaded guilty as revealed by the record. The Respondent in their submissions had cited the decision in Gallagher v The Queen [1986] HCA 26; (1985) 160 CLR 392 to the effect that that "an appellate court will conclude that the unavailability of fresh evidence at the time of trial involved a miscarriage of justice only if it considers that there is significant possibility that the jury, acting reasonably, would have acquitted the accused of the charge if that evidence had been before it." Since the Appellant had pleaded guilty to the charge the consideration of the evidence set out in his affidavit which was filed subsequently to the filing of the petition of appeal would not arise.
   
9. The grounds of appeal challenging his conviction therefore have no merit.
   
10. The Appellant also appealed against his sentence on the basis that it was harsh and excessive.
    
11. A person convicted of attempted murder is liable to life imprisonment and the Appellant had been sentenced to 11 years imprisonment.
    
12. The Appellant as well as the State had in their submissions referred to several decisions relating to the sentencing for attempted murder. In State v Swamy [2007] FJHC 78, Prasad v The State [2008] 48, State v Sharma [2009] FJHC 62 the starting point had been taken as 9 years, and in the present case too the starting point was taken as 9 years and the learned trial Judge having considered the aggravating and mitigating factors had arrived at a sentence of 11 years having special regard to the nature of the several injuries inflicted by the Appellant on the victim.
    
13. In the above circumstances the sentence of 11 years imprisonment imposed on the Appellant by the learned trial Judge is not excessive.
    
14. The application of the Appellant for leave to appeal against his conviction and sentence is therefore refused.
    

Order of Court

The application for leave to appeal against conviction and sentence is refused.

Suresh Chandra
Resident Justice of Appeal