Kirikiti v State [2014] FJCA 223; AAU00055.2011 (7 April 2014)

IN THE COURT OF APPEAL
[On Appeal from the High Court]

CRIMINAL APPEAL NO. AAU0005 OF 2011
(High Court Case No. HAC 139 of 2010)
(Magistrates' Court Criminal 1209 of 2010)

BETWEEN:

ALIFASI KIRIKITI
Appellant

AND:

THE STATE
Respondent

CORAM : Goundar JA

Counsel : Mr. J. Savou for the Appellant
Ms M. Fong for the Respondent

Date of Hearing : 17 March 2014
Date of Ruling : 7 April 2014

RULING

[1] Following a trial in the Magistrates' Court exercising extended jurisdiction, the appellant was convicted of aggravated robbery contrary to section 311(1)(a) of the Crimes Decree and sentenced to 8 years and 6 months imprisonment with 7 years as non-parole. He filed a timely appeal against conviction in this Court. After he was granted legal aid, his counsel filed amended grounds of appeal against conviction and sentence on 3 March 2014.

[2] This appeal falls within the ambit of section 21(1) of the Court of Appeal Act. Section 21(1) provides:

"A person convicted on a trial held before the High Court may appeal under this Part to the Court of Appeal –

(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 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 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."

[3] Aggravated robbery is an indictable offence, but a judge of the High Court has power to extend the jurisdiction of the Magistrates' Court pursuant to section 4 (2) of the Criminal Procedure Decree. When an accused is convicted in the Magistrates' Court exercising extended jurisdiction, the right of appeal lie under section 21(1) of the Court of Appeal Act. Leave is required on any ground which involves a mixed question of law and fact, or fact alone. It was pointed out by the Supreme Court in Naisua v State Criminal Appeal No. CAV0010 of 2013 that the test for leave to appeal against conviction on mixed grounds of law and fact in the Court of Appeal is whether an arguable point is being raised for the Full Court's consideration.

[4] The test for leave to appeal against sentence is whether the trial Court arguably made one of the following errors:

(i) Acted on a wrong principle;

(ii) Took into account extraneous or irrelevant matters;

(iii) Mistook the facts;

(iv) Failed to take into account some relevant considerations (Naisua's case).

[5] Leave is not required for a ground which involves a point of law alone (section 21(1)(a)) but the appeal can be dismissed under section 35(2) of the Court of Appeal Act if the point of law has no prospect of success and is frivolous (Sousau v State Criminal Appeal No: AAU0020 of 2003S, Naisua's case at para [30]).

[6] The appellant advances the following grounds of appeal against conviction:

1. The Learned Trial Magistrate erred in law in convicting your petitioner for Aggravated Robbery when the said offence was defective.

2. The Learned Trial Magistrate erred in law when he failed to properly assist the petitioner as a result of his unrepresented status by failing to direct himself on the following matters:

(i) Failing to warn himself on the dangers of identification alone when there was no other collaborating evidence;

(ii) Failing to warn himself on the pre-judicial effect of using its judicial

discretion to exclude the Identification Parade which would have assisted the Court in terms of what weight to award to the identification made by the two eyewitnesses.

Conviction appeal

Defective charge

[7] Whether a charge is defective is a question of law alone (Naisua's case). Leave is not required provided the ground is not frivolous. The appellant's charge read:

Statement of Offence (a)

Aggravated Robbery: Contrary to section 311(1)(a) of the Crimes Decree Number 44 of 2009.

Particulars of Offence (b)

Alifasi Kirikiti on the 9th day of July 2010 at Suva in the Central Division, with others stole cash $345.00 from one Ashwant Nagaiya s/o Nagaiya.

[8] Section 311(1) (a) (b) of the Crimes Decree provide:

A person commits an indictable offence if he or she –

(a) commits a robbery in company with one or more other persons; or

(b) commits a robbery and, at the time of the robbery has an offensive weapon with him or her.

[9] The appellant's charge contains both a statement of offence and particulars of offence. The statement of offence contains a known offence of aggravated robbery. Reference is made to the correct section of the Crimes Decree. The particulars of offence contain all the essential ingredients of aggravated robbery. In his submission, counsel for the appellant has not pointed out to any defect in the charge. He submits the charge is defective, and since the error alleged is a point of law alone, leave to appeal is not required. But the test is that the point of law raised in the ground of appeal should have some prospect of success and is not frivolous. In the present case, I find the point of law in relation to defective charge cannot possibly succeed and is frivolous.

Identification evidence

[10] The appellant was positively identified by three witnesses as one of the attackers on the complainant. The complainant was mugged on a street at nighttime while he was walking to the bus stand from a night club. The mugging was witnessed by two women who came to the complainant's rescue. Shortly after the incident, the appellant was arrested when the witnesses identified him as one of the attackers. The investigating officer gave evidence and said that an identification parade was not conducted because the appellant was only arrested after he was positively identified by the witnesses who had witnessed the mugging.

[11] In paragraphs 31 and 32 of his judgment, the learned Magistrate expressly directed his mind to the Turnbull guidelines on identification. He then returned to the evidence and at paragraph 34 made the following findings:

"PW2 and PW3 witnessed the entire episode of this robbery as independent witnesses and precisely and affirmatively identified the accused not only from his clothes but from his face and height as both of them were able to see his face from the lights came from vicinity. More particularly PW3 was observing the accused from the beginning of this crime till he was arrested by the police officer. The evidence of PW4, the arresting officer reaffirmed that he arrested the accused upon PW2 and PW3's identification of him in front of Ritz Night Club. I do not find any reason to conduct an identification parade for the accused after he was arrested since he was identified by both PW2, PW3, at the time of his arrest, wherefore, I do not agree with accused person's contention to the omission of the police of not conducting an identification parade entirely weaken the evidence relied upon by the prosecution. In view of these evidences of identification of the accused, I am satisfied the evidences of identification are quality and good and remained good at the close of the accused person's case. (R v Turnbull, supra)."

[12] The reliability and weight of the identification evidence was a matter for the learned trial Magistrate to determine. He found the identification evidence to be reliable after carefully assessing the circumstances under which the identification was made. He accepted that an identification parade would not have added anything because the appellant was only arrested after he was pointed out by the witnesses as one of the attackers. These findings were available on the evidence and the ground of appeal on identification evidence is not arguable but is frivolous in a sense that it cannot possibly succeed.

Sentence appeal

[13] The grounds of appeal against sentence are:

1. The Learned Trial Magistrate erred in law when he imposed a non-parole period when the imposition of the non-parole period offended against the remission as allowed in the Prisons and Corrections Act 2006.
   
2. The Learned Trial Magistrate erred in law in using the Appellant's previous conviction as an aggravating factor in sentence.
   

Non-parole period v remission

[14] The learned Magistrate fixed the non-parole period pursuant to section 18 of the Sentencing and Penalties Decree. Under section 18 of the Sentencing and Penalties Decree, the court has discretion to fix a non-parole period. The appellant's contention is that learned Magistrate erred in law by fixing a non-parole because the imposition of a non-parole period offends the calculation of remission of sentence under the Prisons and Corrections Act 2006.

[15] Section 27 of the Prisons and Corrections Act states:

(1) All convicted prisoners shall be classified in accordance with the procedures prescribed in Commissioners Orders.

(2) For the purposes of the initial classification a date of release for each prisoner shall be determined which shall be calculated on the basis of a remission of one-third of the sentence for any term of imprisonment exceeding one month.

[16] The initial date of release is dependent on the good behavior of the prisoner. Section 28 of the Prisons and Corrections Act states that 'the remission of sentence that is applied at the initial classification shall thereafter be dependent on the good behavior of the prisoner, and it may be forfeited and then restored, in accordance with the Commissioners Orders.

[17] The appellant's contention is that if the date of release is to be calculated on the basis of a remission of one-third of the sentence, then the 7-year non-parole is an obstruction to that calculation. If no non-parole period was imposed, then the appellant's initial date of release would have been calculated on the basis of 2 years and 10 months remission (1/3 of 8 years and 6 months sentence). When a non-parole period is fixed, then the remission is calculated on the balance of the sentence. The balance of the sentence in this case is 18 months. One-third of 18 months is 6 months. So the appellant gets 6 months remission as opposed to 2 years and 10 months if no non parole period was imposed.

[18] Whether there is a conflict between the two statutes in relation to the non-parole period and the remission is a question of law. But in my judgment the ground of appeal cannot possibly succeed because remission is a matter that the court is not entitled to take into account in sentencing. The power to grant remission lies with the Department of Corrections and not with the courts (Chand v State Criminal Appeal No.CAV0003 of 2012). The courts have power to impose non-parole periods. When the courts impose non-parole periods or minimum terms under the Sentencing and Penalties Decree, then the prisoners cannot be released under any forms of release under the Corrections and Prisons Act until they had served the non-parole periods or the minimum terms. If there is a conflict between these two statues, then the conflict can only be fixed by the legislature. There is no arguable error of principle when the learned Magistrate imposed a non-parole period against the appellant.

Use of previous convictions

[19] At paragraph 15 of his sentencing remarks, the learned Magistrate expressly stated he did not consider the appellant's previous convictions as an aggravating factor. This ground cannot possible succeed.

Result

[20] I am satisfied that the appeal against conviction and sentence cannot possibly succeed and is frivolous. The appeal is dismissed under section 35(2) of the Court of Appeal Act.

.................................
Hon. Justice D. Goundar
JUSTICE OF APPEAL