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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the Magistrate Court]
CRIMINAL APPEAL NO.AAU 032 of 2016
[In the Magistrates Court at Lautoka Case No. HAC 388 of 2015)
BETWEEN:
BAINIVALU TUIMATAVESI
Appellant
AND:
STATE
Respondent
Coram: Prematilaka, JA
: Bandara, JA
: Temo, JA
Counsel: Ms. S. Nasedra for the Appellant
: Ms. J. Fatiaki for the Respondent
Date of Hearing: 06 May 2021
Date of Judgment: 03 June 2021
JUDGMENT
Prematilaka, JA
[1] The appellant had been convicted on his plea of guilty in the Magistrates Court at Lautoka exercising extended jurisdiction on one count of aggravated robbery contrary to section 311(1)(b) of the Crimes Act, 2009, one count of theft contrary to section 291(1) of the Crimes Act, 2009, one count of abduction with intent to confine person contrary to section 281 of the Crimes Act, 2009, one count of driving a motor vehicle without a driving licence contrary to section 56(3)(a)(6) and 114 of the Land Transport Act and one count of driving a motor vehicle not covered under the third party risk contrary to section 4 of the Motor Vehicle Third Party Insurance Act, committed on 10 June 2015 at Lautoka in the Western Division.
[2] In addition, the appellant together with one Lemeki Tupati was convicted on his plea of guilty on another count of escaping from lawful custody contrary to section 196 of the Crimes Act, 2009.
[3] The appellant had pleaded guilty on 21 September 2015 and the Magistrate on his plea had convicted the appellant of all charges on 01 February 2016 after admitting the summary of facts. On 21 March 2016 the Magistrate had proceeded to sentence the appellant as follows:
‘(i) Aggravated robbery : 10 years of imprisonment.
(09 years of non-parole)
(ii) Theft : 02 years of imprisonment.
(iii) Abduction with intent to confine
person :10 months of imprisonment
(iv) Driving a motor vehicle without a
driving licence :$200.00 fine and 20 days imprisonment
(v) Driving a motor vehicle not covered
under a third party risk :$200.00 fine and 20 days imprisonment
(vi) Escaping from lawful custody : 06 months of imprisonment.
[4] The matter was first mentioned on 12 June 2015 at Lautoka Magistrates court, the case was transferred to the High Court in terms of section 191 of the Criminal Procedure Act. On 06 August 2015, the High Court again transferred the case back to the Magistrates court pursuant to section 4(2) of the Criminal Procedure Act to try and hear the case.
[5] On 13 August 2015 when the case was mentioned at Lautoka Magistrates court the charges had been read and explained to the appellant in the presence of his counsel from the Legal Aid Commission and the appellant had understood the same. Disclosures had been served on the same day on the appellant’s counsel.
[6] On 15 September 2015 the appellant was represented by counsel for the Legal Aid Commission and the appellant pleaded guilty to all the charges. The case was called thereafter on 03 November 2015 and 01 December 2015 for the summary of facts to be submitted. On 01 February 2016, summary of facts had been submitted and the appellant had admitted the summary of facts.
[7] The appellant had earlier withdrawn from the Legal Aid Commission on 03 November 2015 and his written mitigation had been filed on 01 December 2015.
[8] After the appellant’s admission of summary of facts on 01 February 2016 the case had been mentioned on 26 February 2016 and he had been sentenced on 21 March 2016.
[9] The appellant had tendered a timely application for leave to appeal against conviction and sentence. The grounds of appealnst cost conviction urged before the single Judge were:
“That the guilty plea was equivocal in that:-
(i) the guilty plea was takehout any legal advice and assistance;
(ii) the lahe lack of knowledge to understand the consequences of pleading guilty;
(iii) the guilty plea was not voluntarily made or given.”
[10] The grounds of appeal placed before the single Judge against sentence were:
“(i) That the learned sentencing Magistrate erred in law to enhance the sentence by 5 years to reflect aggravating features;
(ii) That the learned sentencing Magistrate erred in law by discounting the sentence by one third for the early guilty plea;
(iii) That the learned sentencing Magistrate erred in law in choosing a non-parole period that is close to the head sentence.”
[11] Leave to appeal against conviction was granted in order for the full court to examine the appeal record in relation to the conviction appeal. Leave to appeal against sentence on grounds 01 and 02 only was granted by the single Judge. The appeal against sentence on ground 3 was dismissed under section 35(2) of the Act.
[12] The summary of facts presented by the prosecution and admitted by the appellant are as follows:
‘On the 10th of June 2015 the first accused, Lemeki Tupali and the second accused Bainivalu Tuimatavesi were serving their separate term at the Natabua Corrections Centre. Both were housed in Dorm No.5B
It was at about 1.15pm, the Duty Officer, SGT Major Mosese Nakavulevu received information that the two accused persons were planning to escape so he quickly called for a head count. Upon checking, he found that both the accused persons were missing. Upon further checking, it was discovered that a part of the fence behind 6B was damaged and through the damaged fence both accused had escaped.
Around 9.30am on 10th June 2015, the victim, Nilesh Kumar (PW1) supervisor of Auto Mart Yard was preparing wages for his staff when accused 2 and another entered the office and assaulted him on his face and head and then took the car keys of his company vehicle, a maroon pajero registration number DU 544 and started it. They then tied his hands and legs, gagged his mouth and covered his face before putting him between the front and the back seat of the vehicle. Accused 2 driving whilst the other sat on PW1’s head.
PW1 was later dumped at Nasoso Runaway where he was able to until himself and with the help of some of the workers nearby, he reported the matter at Namaka Police Station and then was taken to the Nadi Hospital before being transferred to ICU Lautoka Hospital. Accused 2 and another were able to get away with the vehicle. The vehicle was valued $45,000.00.
Later he found the following items missing:
- 2 phone – 1 Alcatel valued $299.00 and 1 Nokia $150.00
- Wallet
- Other company documents and keys
From Nasoso, accused 2 and another went to Namotomoto village where they picked Reapi Taburere (PW3) in a maroon pajero and went towards Denarau after picking Makereta Biau (PW4).
Around the same, DC Edward Bibi (PW5), DC Leone (PW6), PC Akariva and Sgt Atu received informed on RT about the vehicle. They saw the vehicle registration number DU 544 near Ratu Navula School. PW 5 went to the vehicle and opened the door where he saw accused 2 sitting in the driver’s seat and another in the front passengers seat with some other people in the back seat but as soon as accused 2 saw police he reversed the vehicle, damaging the vehicle on his rear and drove towards Nadi town, Nawaka, Solovi and Nausori Highland with the police chasing them.
The village headman of Bukuya Village was informed of the vehicle coming towards their village and to erect a road block. The vehicle did arrive in Bukuya Village where accused 2 and another were arrested by the village headman and the villages after a confrontation and later when police arrived, accused 2 and another were handed over to them.
Accused 1 was interviewed under caution where he voluntarily admitted that he had planned with accused 2 to escape from Prison. He did not attend breakfast at 7am instead went to the back removed the blocks from the fence and escaped.
Accused 2 was interviewed under caution where he voluntarily admitted that he escaped from Natabua Prison with accused 1. He followed the creek to Auto Mart Yard fence where he with another planned to steal a vehicle. They went in and stole a vehicle after assaulting and tying the hands and legs of the owner of the vehicle and then kept him in the vehicle. He admitted driving the vehicle to Nadi and dumping the man on the roadside before picking his wife from Namotomoto. They returned towards Denarau after having their bath when police approached them but when the police opened the door of the vehicle, he reversed the vehicle and took off towards Nawaka, hospital Rd, Mulomulo road then towards Nausori Highland road where they were arrested by some villages who assaulted him. Later when police arrived, they were arrested and brought to the police station. Moreover, he admitted he does not have a valid driving license hence not covered under the 3rd party policy.
Both accused have convictions.’
01st ground of appeal
[13] The complaint that the guilty plea was taken without legal advice and assistance is baseless as demonstrated in the timeline of the case. The appellant was represented by the counsel from the Legal Aid Commission when he pleaded guilty on his own free will on 21 September 2015 after charges being read, explained and understood by the appellant and disclosures being served on him on 13 August 2015. He on his own volition dispensed with legal assistance only on 03 November 2015. Therefore, he must have received legal advice in the matter of the plea of guilty.
[14] In Vaqewa v State [2016] FJSC 12; CAV0016.2015 (22 April 2016) the Supreme Court remarked:
‘[28] In waiving rights to counsel or in rejecting advice from Magistrates or judges to apply for Legal Aid, or in simply doing nothing about legal representation, petitioners do not thereby create a ground of appeal for later arguing that they have been done an injustice and been deprived of counsel.....’
[15] The Supreme Court in State v Samy [2019] FJSC 33; CAV0001.2012 (17 May 2019) also had usefully referred to the role of the defense counsel and the trial judge vis-à-vis a guilty plea in the matter of a plea as follows:
‘[21] Frequently it can happen that after an offence has been committed, about which an Accused person feels deeply ashamed, that various explanations are given to the police or to the court. Subsequently an Accused can retract some or all of those explanations. It is not for a court to inquire into the advice tendered by counsel to his client. The Respondent has not deposed in an affidavit, that is, on oath, as to wrongful advice given by his lawyer. In argument it was suggested there was pressure. But the court cannot substitute its own view of what it considers should have been the areas of questioning or advice to be given by a lawyer to his client.......’
[16] The appellant’s other complaints can be considered under ‘equivocal pleas’. He opted to represent himself only on 03 November 2015 by which time he had pleaded guilty represented by counsel. He had not changed his mind until the sentence was meted out on 21 March 2016. During the period that lapsed in between he had filed written mitigation and admitted the summary of facts.
[17] The Magistrate had clearly mentioned in the sentence order dated 21 March 2016 that the appellant pleaded guilty voluntarily and he was satisfied that he plea was unequivocal. The Magistrate had also mentioned that the appellant had admitted the summary of facts freely.
[18] Therefore, the allegation that he lacked knowledge to understand the consequences of pleading guilty and it was not voluntarily made is without any foundation.
[19] Nalave v State [2008] FJCA 56; AAU0004.2006; AAU005.2006 (24 October 2008) the Court of Appeal held:
‘[23] 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.K.B 758, R v Gths (1932)1932) 23 Cr. App. 3,&153, R v. Vent (125 ) . App. R. 55). A guiA guilty plea must be a ne cousness of guilt voluntarily made without any form of pressure to plead guilty
(
[20] In Chand te [2019] FJCA 254; AAU0078.2013 (28 November 2019)2019) the Court of Appeal stated on the same matter as follows:
‘[26] The responsibility of pleading guilty or not guilty is that of the accused himself, but it is the clear duty of the defending
counsel to assist him to make up his mind by putting forward the pros and cons of a plea, if need be in forceful language, so as
to impress on the accused what the result of a particular course of conduct is likely to be (vide R. v. /u> [160; [1968] 2 Q.B. 787; . ACr. App. R. 528, C.A.). In
[21] In Samy v State
‘D12.96 Defence Counsel - It is the duty of counsel to advise his client on the strength of the evidence and the advantages of a guilty plea as regards sentencing
(see, e.g.,
Where an accused is so advised and thereafter pleads guilty reluctantly, his plea is not ipso facto to be treated as involuntary (ibid). It will be involuntary only if tvice was so very forceful aful as to take away his free choice.’
[22] It was stated by the High Court of Australia in Meissner v The Qu160;#160; [1995] HCA 41; (1995) 184 CLR 132)
t is true that a person may plead guilty upon gron grounds unds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily thll only be whee where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence."
[23] In Tuisavusavu v State [2009] FJCA 50; AAU0064.2004S (3 April 2009) the Court of Appeal stated:
‘[9] The authorities relating to equivocal pleas make it quite clear that the onus falls upon an appellant to establish facts upon which the validity of a guilty plea is challenged (see Bogiwalu v Stat&#/b> [1998] FJCA 16 and cases citedein). It hast has been thaturt should approach the question of allowing an a an accused to withdraw a plea ‘#8216;with cautorderirdering on circumspec#8217; (Liberti (1991) 55 A Cr120 at 0 at 0 at 122). The same can be said as regards an appellate court considering ssue of an allegedly equivocal plea.
[10] ] Whether a guilty plea is effective and binding is a question of fact to be determined by the appellate court ascertaining from the record and from any other evidence tendered what took place at the time the plea was entered. We are in no doubt from the material before us that the 1st appellant’s plea was not in any way equivocal.’
[24] Having examined the record, I do not find any evidence of equivocation. The appellant has not discharged the onus that fell upon him to establish facts upon which the validity of a guilty plea was challenged.
[25] This ground of appeal has no merits.
Grounds of appeal on sentence
[26] Calanchini P stated in Singh v S/u>  Criminal No. AAU15 6 of 201f 2011: 26 October 2012 [2012] FJCA 71 concerning inter alia robwith violencer se 293 (193 (1) (b) of t of the Pen">Penal Code: ‘here ple auth authority in this Jurisdiction for concludinguding that that the appropriate tariff for robbery with violence is now 10 to 16 years imnment. In selecting 10 years as a starting point the learneearned trial judge has started as the lower end of the range.’
[27] In Na#160; v &160; State;ɘCriminaiminal Appeal CAV 0012 of 2012: 28 August 2013 [2013] FJSC 11 His Lordthe Chisticeed thve thve passage fage from&#rom Singh #160;and said:
>&>‘8216;[27] So far as the head sentencconcerned, the court finds 13 years to be within the range ange set by recent authority for serious violent crime such as robbery with vio. the outstanding fing factoractors triggering a high penalty in the range 10-16 years were the spate of offending, the gravity of the anti-social behaviour with its menace to persons and property, the invasion of home and privacy, the violence proffered, and the need for very strong disapproval of such behaviour.’[28] In Wise v The State CAV of 2015: 24 April 2015&2015 [2015] FJSC 7 tpreme Court said:
‘We are concerned with a single case here and not a spat spate of robberies Livai Nawalu v The State CAV0012/2012 at paragraphs
27-29, where the tariff for violent crimes of this nature was set at 10-16 years’
‘.......... for what was a home invasion at night with violence inflicted, by a group of men, armed with weapons, namely a knife
and an iron bar. For circumstances such as these, rightly abhorrent to the law-abiding community, will compel courts to harden their
hearts and to impose harsher sentences’
‘We believe that offences of this nature should fall within the range of 8 - 16 years imprisonment. Each case will depend on its own peculiar facts. But this is not simply a case of robbery, but one of aggravated robbery. The circumstances
charged are either that the robbery was committed in company with one or more other persons, sometimes in a gang, or where the robbers
carry out their crime when they have a weapon with them.’
[29] Nabainivalu v State Cal Appeal CAV 027 of 2014:2014: 22 October 2015 [2015] FJSC 22 the Supreme Coure again conn confirmed in tllowing words:
[30] In Mani v State AAU0087 of 2013:14 September 2017 [2017] FJCA 119&#/a> which case of aggravated rted robbery with accompanying violence Court of Appeal acknowledged that the tariff was 10-16 yea6
years:
‘..... the tariff of 10-16 years for the offof aggravated robbery as laas laid down in several judicial pronouncements (see Samuel Donald Singh v State Crim. AAU15 and 16 o1, Nawa Nawalu v te &#r60;Cal inal Appeal CAV 0CAV 0012 of 2012: 28 August 2013 [2013] FJSC 11, Nabainivalnivalu v State Criminal Appeal CAV 027 of 2014 : 22 October 2060; [2015] FJSC 22....’
[31] Waisele v State AAU0081 of 2013: 30 November 2017 [2017] FJCA 136 which was also e of aggravagravated robbery committed, armed with offensivpons and violence inflicted, the Court of Appeal affirmed tmed that the tariff was 10-16 years.
[32] Though, the facts ancumstances in the appellantllant’s case are not exactly the same as in the above decisions they provide a very useful insight into the evolving thinking of the appellate courts over a period of nearly a decade on appropriate sentences in cases of robbery with violence under the Penal Code and ever increasing aggravated robbery cases under the Crimes Act, 2009.
[33] Therefore, as far as the final sentence of 10 years is concerned, I do not find any sentencing error in the starting point of 10 years or enhancing of the sentence by 05 years for aggravating features as argued by the appellant.
[34] Secondly, the appellant complains that the Magistrate had failed to give one third discount to his early guilty plea. The Magistrate did give a discount of 03 years for the early guilty plea.
[35] In Balaggan v St160; [2012] FJHC 1032; HAA; HAA031.2011 (24 April 2012) Gounder J had the occasion to observe as follows:
‘[10] This gros misived. not of any law that says that a first time offender is entitled tled to onto one-thie-third rerd reduction
in sentence. But, I am aware that as a matter of principle, the courts in Fiji generally give reduction in sentences for offenders
who plead guilty. In Naikelekelevesi State [2008] FJCA 11; AAU0061.2007 (27 June 2008), the Court of Appeal stressed that guilty plea should be discounted separately from other mitigating
factors present in the case.
[11] The weight that is given to a guilty plea depends on a number of factors...................
[12] The appellant's guilty plea was clearly taken into account as a mitigating factor.’
[36] Madigan J in Ranima v State [2015] FJCA17: AAU0022 of 2012 (27 February 2015) suggested that a discount for the early guilty plea should be considered last after aggravating and mitigating factors are considered and identified a discount of 1/3 for a plea of guilty willingly made at the earliest opportunity as the ‘high water mark’.
‘Discount for a plea of guilty should be the last component of a sentence after additions and deductions are made for aggravating and mitigating circumstances respectively. It has always been accepted (though not by authoritative judgment) that the “high water mark” of discount is one third for a plea willingly made at the earliest opportunity. This court now adopts that principle to be valid and to be applied in all future proceeding at first instance.’
[37] However, it is clear that those remarks by Madigan J were not part of the main judgment and cannot be considered as part of ratio decidendi of the decision. Thus, those sentiments cannot be regarded as authoritative or binding on the matter of discount for early guilty pleas.
[38] In my view, more accurate view was expressed in Mataunitoga v State [2015] FJCA 70; AAU125 of 2013 (28 May 2015) where Goundar J held:
‘[18] In considering the weight of a guilty plea, sentencing courts are encouraged to give a separate consideration and quantification to the guilty plea (as a matter of practice and not principle), and assess the effect of the plea on the sentence by taking in account all the relevant matters such as remorse, witness vulnerability and utilitarian value. The timing of the plea, of course, will play an important role when making that assessment.’
[39] In Aitcheson v State [2018] FJCA 29; CAV0012 of 2018 (02 November 2018) the Supreme Court cited paragraph [18] in Mataunitoga and stated it was a more flexible approach towards an early guilty plea:
‘[15] The principle in
[40] In terms of section 4(2)(f) of the Sentencing and Penalties Act 2009, the sentencing court is to have regard to:
“whether the offender pleaded guilty to the offences, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so.”
[41] Therefore, in my view, the current judicial thinking that has developed progressively over the years is that it is a not a sine qua none for a sentencing judge to give a separate or one third discount for an early guilty plea though it should be accorded some discount depending on the circumstances of each case with even no discount for an inevitable and totally belated plea. As a matter of good practice the sentencing judges are encouraged to accord a separate discount for an early guilty plea but not doing so ipso facto would not constitute an error of law as long as it had been taken into account as part of mitigating factors and given an appropriate overall discount.
[42] Therefore, it cannot be said that the Magistrate had committed an error in principle in awarding a deduction of 03 years for the guilty plea.
[43] Sentencing is not a matical exercixercise. It is an exercise of judgment involving the difficult and inexact task of weighing both aggravating
and mitigating circumstances concerning ffending, and arriving at a sentence that fits the crime. Rme. Recognizing the so-called
starting point is itself no more than an inexact guide. Inevitably different judges and magistrates will assess the circumstances
somewhat differently in arriving at a sentence. It is the ultimate see that that is of importance, rather than each step in the reasoning
process leading to it. When a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step in the reasoning
process that must be considered [vide KoroicakThe Statee [2006] FJSC 5; CAV0006U.2005S (4 May 2006) and Maya v State
Bandara, JA
[45] I have read the draft judgment of Prematilaka, JA and agree with his reasoning and conclusions.
Temo, JA
[46] I have read the draft judgment of His Lordship Mr. Justice Prematilaka, JA, and I agree with his reasons and conclusions.
Orders
Hon. Mr. Justice C. Prematilaka
ACTING RESIDENT JUSTICE OF APPEAL
Hon. Mr. Justice W. Bandara
JUSTICE OF APPEAL
Hon. Mr. Justice S. Temo
JUSTICE OF APPEAL
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