Rabo v State [2014] FJCA 49; AAU0016.2012 (14 April 2014)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO: AAU0016 OF 2012
High Court Case No: HAC133 of 2011

BETWEEN:

PECELI RABO
Appellant

AND:

THE STATE
Respondent

Coram: Goundar JA

Counsel: Appellant in person
Mr. M. Delaney for the Respondent

Date of Hearing: 7 April 2014
Date of Ruling: 14 April 2014

RULING

[1] This is an application for leave to appeal against conviction and sentence. The application is made pursuant to section 21(1) of the Court of Appeal Act. The application is out of time by 3 weeks. The State takes no issue with an extension of time.

[2] The Notice of Appeal is dated 15 March 2012. The Notice was filed on 2 April 2012. Time for filing is extended to 2 April 2012.

[3] The appellant was charged with one count of digital rape. The victim was a 9-year old girl. The appellant was 69 years old. It was alleged that the appellant penetrated the victim's vagina using his fingers. The incident occurred in a village in Kadavu. The appellant and the victim are related.

[4] The trial commenced on 8 February 2012. The appellant was represented by a private counsel. After the victim, her parents and a police officer had given evidence, counsel for the appellant informed the trial judge that his client wished to change his plea to guilty.

[5] The trial judge made an independent inquiry from the appellant. According to the judge's notes the appellant stated:

"Yes, I understand the charge. I am voluntarily changing my plea.

No one forced me to do so."

[6] Plea was taken. The appellant pleaded guilty. He admitted the facts presented by the State. The trial judge convicted the appellant. Mitigation and sentencing submissions were presented. On 10 February 2012, the trial judge sentenced the appellant to 8 years' imprisonment with 6 years as non-parole.

Conviction appeal
[7] The grounds of appeal against conviction are:

1. The plea of guilty was not voluntary and or was equivocal.
   
2. The prosecution intended to adduce a witness who was to be called for a medical matter but was related to the V.
   
3. The Applicant had become over excited by his emotions to the extent that he could not answer as he wished to do.
   

[8] In Nalave v State Criminal Appeal No. AAU004, the Full Court summarized the principles regarding equivocal plea at paragraphs 23 and 24 as follows:

"It has long been established that an appellate court will only consider an appeal against conviction following a plea of guilty if there is some evidence of equivocation on the record (Rex v Golathan (1915) 84 L.J.K8, R v ;R v Griffiths (1932) 23 pp. R. 153,&#1>, R v. VentMeissner v The Queen [ HCA 41; (1995) 184 CLR 13LR 132.

In Maxw The Queen #160;(1986) 184 C1, the Hige High Courtustralia at p. 511 said:

The plea of guilty must however be unequivocal ocal and not made in circumstances suggesthat i a true admissionssion of guilt. Those circumstances includnclude ignorance, fear, duress, mistake, or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered."

[9] The question whether a plea is equivocal involves consideration of facts. Leave is required. The hurdle for the appellant to appeal against his conviction is that he was represented by counsel when he pleaded guilty. Both the appellant and his counsel told the trial judge that the guilty plea was made voluntarily. According to the trial judge's notes the guilty plea was a true admission of guilt. The facts raised by the appellant in his grounds of appeal were information that was available to him when he pleaded guilty. Those are not new facts that he was not aware of and therefore did not appreciate its significance when he pleaded guilty. According to the court record, there is no basis to suggest that the appellant pleaded guilty because of ignorance, fear, duress, mistake, or to gain a technical advantage. In these circumstances, the ground of appeal is not arguable and the conviction appeal cannot possibly succeed.

Sentence appeal
[10] The appellant says his sentence is harsh and excessive. Leave is required. The 8-year sentence is below the tariff for rape of a child. Generally, the sentence for rape of a child range from 10 to 16 years' imprisonment. The trial judge used 10 years as a starting point and after adjusting for the mitigating and aggravating factors arrived at a sentence of 8 years' imprisonment. The learned judge gave a generous reduction of 5 years for the appellant's mitigating factors that included the late guilty plea, old age, illness and previous good character. I cannot find any arguable error in the sentencing discretion of the trial judge. The ground of appeal against sentence is not arguable and I am satisfied the sentence appeal cannot possible succeed.

Result
[11] Leave refused.

[12] The appeal is frivolous and is dismissed under section 35(2) of the Court of Appeal Act.

Hon. Justice D. Goundar
JUSTICE OF APPEAL