Vasuca v State [2015] FJCA 65; AAU011.2011 (28 May 2015)

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

CRIMINAL APPEAL NO. AAU 0011 OF 2011
[High Court Case No. HAC 41 of 2009Ltk]

BETWEEN:

VILITATI VASUCA
Appellant

AND:

THE STATE
Respondent

Coram : Chandra JA
Basnayake JA
Goundar JA

Counsel : Appellant in Person
Mr. V. Perera for the Respondent

Date of Hearing : 11 May 2015
Date of Judgment : 28 May 2015

JUDGMENT

Chandra JA:

I have had the opportunity to read in draft the judgment of Goundar JA and agree with his reasons and his proposed orders.

Basnayake JA:

I agree with the reasons and orders proposed by Goundar JA.

Goundar JA:

[1] Following a trial in the High Court at Lautoka, the appellant was convicted on two counts of robbery with violence contrary to section 293(1)(b) of the Penal Code, Cap. 17. He was sentenced to a total term of 14 years' imprisonment with a non-parole period of 11 years on both counts. He filed a timely appeal against conviction and sentence, and on 26 October 2012, Calanchini P refused leave to appeal against conviction but granted leave to appeal against sentence on the ground that the appellant's remand period was not taken into account in sentence. Following that decision, the appellant renewed his application for leave to appeal against conviction by making an application to adduce fresh evidence of his caution interview in an unrelated case. Apart from his remand period not being taken into account, the appellant submits that his total sentence is excessive.

Fresh evidence

[2] It is not in dispute that the basis for the appellant's convictions was his confession contained in his caution interview dated 18 May 2008. The interview was conducted by D/Sgt Tuitati following the appellant's arrest by Constable Salato. In that interview which was recorded in writing and signed by the appellant, the appellant admitted participating in the alleged robbery.

[3] At trial the appellant was represented by counsel. The admissibility of the appellant's confession was challenged on the following grounds:

1. That these confessions were obtained by force, duress and pressure and through verbal abuse.

2. That he was handcuffed, blindfolded and beaten with an "object".

3. He was threatened with the application of chillies to his genitals.

4. The evidence against him was fabricated and then the statements were not read back to him and he was forced to sign.

[4] The trial judge held a voir dire to determine the admissibility of the appellant's confession. The prosecution called evidence from four witnesses. The appellant elected to remain silent and not to call any evidence. The trial judge after assessing all the evidence was satisfied beyond reasonable doubt that the appellant's confession was made voluntarily. The trial judge ruled the appellant's caution interview was admissible in evidence.

[5] The appellant's application to adduce fresh evidence is difficult to comprehend. He argues that when he was caution interviewed in this case, he was simultaneously interviewed in relation to another unrelated crime. He submits that it was unlawful for the police to conduct simultaneous interviews on two separate allegations.

[6] Counsel for the State submits that the proposed evidence is not fresh evidence because it was available to the appellant at the time of his trial. I agree. As the Supreme Court has said in Mudaliar v State (unreported Criminal Appeal No. CAV0001 of 2007; 14 October 2008) at p. 13:

"Evidence which was either available, or could with reasonable diligence have been discovered, before trial is not "fresh" evidence."

[7] The Supreme Court went on and said at p. 14:

"Strictly speaking, if evidence is not "fresh" but merely "new" an appellate court will quash a guilty verdict only if that evidence either shows the Appellant to be innocent, or raises such a doubt about his or her guilt in the mind of the court that the verdict should not be allowed to stand.

A less stringent threshold applies to "fresh" evidence. As Gallagher explains, where there is "fresh" evidence, an appellate court will conclude that the trial involved a miscarriage of justice if the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the Appellant if that evidence had been before it at the trial: at 399 per Gibbs CJ and at 402 per Mason and Deane JJ.

Plainly, a decision deliberately taken by an accused not to adduce evidence of a particular kind at trial will weigh heavily against its reception on appeal. However, no invariable rule concerning the failure to call such evidence can or should be laid down. The discretion conferred upon the Court must be exercised judicially, but having due regard to the interests of justice, above all else."

[8] The proposed evidence in the present case neither meets the threshold for 'fresh' evidence nor for 'new' evidence. The proposed evidence was clearly within the knowledge of the appellant. The evidence is prejudicial in a sense it shows that the appellant was allegedly involved in another crime. The relevance of the proposed evidence is therefore questionable. I am convinced the appellant's application to adduce fresh evidence is misconceived and therefore must be refused.

New grounds against conviction
[9] The appellant advances several new grounds of appeal against conviction, which he says has resulted in a miscarriage of justice. He contends that the charges were invalid because he was not charged by way of Summons. The Summons procedure did not apply to the appellant because he was formally arrested and charged by the police.

[10] The appellant submits that he was not presented in court within 48 hours after the police charged him. This is a matter that the appellant should have taken with the trial court. Even if the appellant was not presented in court within 48 hours, this did not affect the fairness of the trial.

[11] The appellant contends that his caution interview was wrongly admitted. The admissibility of the appellant's caution interview was determined in a voir dire. I cannot see any error in the trial judge's voir dire ruling.

[12] The appellant's final contention is that during the trial, one of the prosecution witnesses mentioned he was a wanted man by the police. This evidence was elicited by the appellant's counsel in cross-examination of a prosecution witness when counsel suggested that the appellant was a wanted man. When this evidence was led, the trial judge excused the assessors and admonished counsel for leading prejudicial evidence. In his summing up, the trial judge at para [21] directed the assessors to disregard this evidence. In my judgment, the direction dispelled any prejudice that arose from the bad character evidence led by the appellant's own counsel.

[13] The grounds of appeal against conviction have not been made out. I would dismiss the appeal against conviction.

Sentence appeal
[14] The State concedes that the appellant was in custody on remand for about 2 months, which was not taken into account when he was sentenced in the High Court. Section 24 of the Sentencing and Penalties Decree 2009 requires sentencing courts to regard any pre-trial detention as a period of imprisonment already served by the offender. In this jurisdiction, the practice has been discounting or subtracting the remand period instead of backdating the sentence. There is no exact formula on how the discounting should be made. Some judges incorporate the discounting in the combined quantification for all the mitigating factors while some judges turn to give separate discounting for pre-trial detention. The length of the remand period may vary from case to case, and in each case the discretion lies with the sentencing court to comply with section 24 of the Sentencing and Penalties Decree 2009. In Basa v State (unreported Criminal Appeal No. AAU0024 of 2005; 24 March 20006), the offender had spent one year, one month and fourteen days in custody before the trial but the judge only allowed for one year on remand. On appeal this Court said at para. [12]:

"The appellant also points out that he had spent one year, one month and 14 days in custody before the trial but the Judge only allowed for one year on remand. When calculating the appropriate sentence for any offence, the Judge should allow for any substantial period in custody but it is not necessary to make a precise calculation. The allowance of a year was a perfectly proper amount."

[15] Although Basa's case was considered before the Sentencing and Penalties Decree 2009 came into effect, the view that was expressed by this Court regarding consideration of the remand period in sentence has not been altered by section 24 of the Decree. Section 24 reads:

'Time in custody before trial to be deducted'

"If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court otherwise orders, be regarded by the court as a period of imprisonment already served by the offender."

[16] The heading to section 24 states 'time in custody before trial to be deducted'. But the section itself does not use the word deduction. The operative word in section 24 is 'regarded'. To regard means to consider or to take into account (Shorter Oxford English Dictionary, 2nd ed. Vol. 1 p. 1690). The use of the word 'shall' in section 24 literally means that sentencing courts have no option but to consider any remand period, even if it is a few days, as a period of imprisonment already served. If this interpretation is correct, then the offenders will be ending with sentences in terms of years, months and days. But the word 'shall' in section 24, is followed by a comma and a phrase 'unless a court otherwise orders', which can mean that it is discretionary as opposed to mandatory for sentencing courts to consider remand period as a period of imprisonment already served. If the purpose of section 24 is to create a mandatory obligation on sentencing courts to consider any remand period as a period of imprisonment already served, then what is the purpose of giving a residual discretion that defeats the original purpose? The two propositions are clearly in conflict.

[17] So how should sentencing courts consider remand period in sentence. In my opinion, the answer lies with how the remand period was considered under the common law as outlined in Basa's case, that is, when calculating the appropriate sentence for any offence, sentencing courts should allow for any substantial period in custody but it is not necessary to make a precise calculation. What is a substantial period, of course, will depend on the facts of each case and the sentence that has been imposed on the offender.

[18] In the present case, the appellant was arrested on 16 May 2009. When the appellant was presented in the Magistrates' Court together with his co-accused on 9 June 2009, the learned Magistrate made a note in the court record that the appellant was on remand in custody in other cases. Subsequently, the appellant became a serving prisoner in an unrelated case while this case was pending for trial. It is not in dispute that currently the appellant is serving multiple sentences, some of which were imposed after he was sentenced in this case. At this stage, this Court has no jurisdiction over the subsequent sentences imposed on the appellant. The appellant told this Court that his subsequent sentences are subject of appeals. Because the appellant was remanded in multiple cases at the same time, there is a possibility that his total remand period has been taken into account in other sentences that were imposed after the sentence in the present case was imposed. In any event, 2 months is not a significant period when compared with the term of 14 years' imprisonment that the appellant is serving. If the appellant would have thought that his remand period was significant, then he would have highlighted that fact to the trial judge instead of electing to remain silent and offer no assistance in mitigation.

[19] The appellant's other complaints relate to his role in the robbery and the severity of his sentence.

[20] The facts are that on 7 February 2009 at Saweni, Lautoka, the appellant and his two accomplices entered the domestic premises of the Kumar family while they were asleep. After they had entered the premises, one of the accomplices directed the appellant to go outside to act as a lookout. The accomplices entered the bedroom of Mr and Mrs Kumar and demanded for money and gold. One of the accomplices was masked. Mr Kumar was held pinned to the bed while his legs were stomped on and a cane knife was placed against his stomach. After grabbing gold, laptop, mobile and jewellery, the intruders entered the next door room occupied by Mrs Kumar's elderly and sickly mother. The intruders beat the elderly woman and demanded gold from her. The traumatic time in the house lasted for about 45 minutes before the group fled the scene.

[21] At paragraph 6 of his sentencing remarks, the trial judge alluded to the fact that the appellant only acted as a lookout while others robbed but that did not absolve him from responsibility for this frightening crime. I agree. In Wallace Wise v State (unreported Criminal Appeal No. CAV0004/2015; 24 April 2015) the Supreme Court has said that aggravated robbery should fall within the range of 8-16 years' imprisonment for reasons at para [27]:

"It is our duty to make clear these types of offences will be severely disapproved by the courts and be met with appropriately heavy terms of imprisonment. It is a fundamental requirement of a harmonious civilized and secure society that its inhabitants can sleep safely in their beds without fear of armed and violent intruders."

[22] On the facts of this case, the sentence of 14 years' imprisonment was justified and reflects the criminality involved. The sentence is within the range and is not manifestly excessive. I would dismiss the sentence appeal.

Orders of the Court:
Leave to adduce fresh evidence is refused.
Appeal against conviction and sentence is dismissed.

.............................................
Hon. Justice Suresh Chandra
JUSTICE OF APPEAL

.............................................
Hon. Justice Eric Basnayake
JUSTICE OF APPEAL

................................................
Hon. Justice Daniel Goundar
JUSTICE OF APPEAL

Solicitors:
Appellant in person
Office of the Director of Public Prosecutions for State