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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CRIMINAL APPEAL NO.AAU 121 of 2018
[High Court at Suva Criminal Case No. HAC 161 of 2018]
BETWEEN:
SAILOSI VIRIKIBAU VUNIDAKUA
Appellant
AND:
STATE
Respondent
Coram : Prematilaka, JA
Counsel : Mr. M. Fesaitu for the Appellant
: Ms. E. Rice for the Respondent
Date of Hearing : 19 January 2021
Date of Ruling : 20 January 2021
RULING
[1] The appellant had been indicted in the High Court on a single count of robbery contrary to section 311(1)(a) of the Crimes Act, 2009 committed with another on 20 April 2016 at Nabua in the Central Division. The charge against the appellant was as follows.
‘Statement of Offence
AGGRAVATED ROBBERY: Contrary to section 311(1)(a) of the Crime Act 2009
Particulars of Offence
SAILOSI VIRIKIBAU VUNIDAKUA in the company of another on the 20th day of April 2016, at Nabua in the Central Division, in the company of each other robbed NACANIELI YALIMAITOGA KUMKEE of 1x Maxpo Angle grinder valued at $ 85.00, 1x Bosch Grinder valued at $848.00 and 1x Cigweld Welding Plant valued at $1400.00, all to the value of $2373.00 the property of Quality Power Engineering System Ltd.
[2] After the summing-up, the assessors had expressed a majority opinion against the appellant on 30 August 2018 and the learned High Court judge had found him guilty in his judgment delivered on 31 August 2018. The appellant was sentenced on 28 September 2018 to an imprisonment of 09 years, 06 months and 20 days with a non-parole period of 07 years, 06 months and 20 days.
[3] The appellant had tendered an appeal in person against conviction and sentence on 09 November 2018 which was out of time by about 12 days but could be considered timely. The Legal Aid Commission had filed amended grounds of appeal and written submission on 14 October 2020. The state had responded by its written submissions on 30 October 2020.
[4] In terms of section 21(1)(b) and (c) of the Court of Appeal Act, the appellant could appeal against conviction and sentence only with leave of court. The threshold test applicable is ‘reasonable prospect of success’ to determine whether leave to appeal should be granted (see Caucau v State AAU0029 of 2016: 4 October 2018 [2018] FJCA 171, Navuki v State AAU0038 of 2016: 4 October 2018 [2018] FJCA 172 and State v Vakarau AAU0052 of 2017:4 October 2018 [2018] FJCA 173 and Sadrugu v The State Criminal Appeal No. AAU 0057 of 2015: 06 June 2019 [2019] FJCA87.
[5] Further guidelines to be followed for leave to appeal when a sentence is challenged in appeal are well settled (vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013] FJSC 14; House v The King [1936] HCA 40; [2019] FJSC 27; CCAV0001 of 2019 (01 November 2019).
[14] In almost all criminal trials dock identification takes place as a matter of formality unless the accused is tried in absentia. Appellate courts have been concerned not with dock identifications per se but with first time dock identifications i.e. where the accused is identified for the first time in the dock after the offence was committed without having a previous formal method of identification by way of a photographic identification or identification parade.
[15] In Nalave the facts and circumstances were different as partly revealed from paragraph 32.
‘[32] ..............To have the petitioners identified by a dock identification at all when identity was in issue was a material irregularity but for that evidence to emerge and be laid before the trial judge and assessors without them knowing that the identifying witness had seen the two women in the custody of police officers at the club during a reconstruction of the crime is additionally troubling, for an identification in such circumstances is also tainted by its highly suggestive setting. In the event, what was presented to the 2013 trial court was an identification by the guard on the day he testified which, as far as that court knew – unless the court had drawn an impermissible conclusion from the reference in one of the interview records that there had been an identity parade - was the first time since 2004, apart from a sighting at court the previous year, that the witness had been asked to identify the two women who had drawn his suspicion on the night of the killing. And it was a dock identification.
[16] It is in the specific facts and circumstances of Nalave that the decision therein and particularly paragraph [37] relied upon by the appellant has to be understood vis-à-vis a first time dock identification.
[17] However, in this case there was a clear identification of the appellant by the complainant at the crime scene and it was a mere accident that he saw him at the police station where he immediately pointed at him and recognised him as Sailosi who had robbed him just a few hours ago. There was no prompting by the police or suggestive setting for the complainant to identify the appellant. In addition the recovery of two grinders by the police on being shown by the appellant, which he conceded, adds credibility to the identification by the complainant.
[18] In those circumstances, there would have no purpose of holding an identification parade or even a photographic identification.
[19] On a complaint of the irregularity of a first time dock identification the following test was formulated in Korodrau v State [2019] FJCA 193; AAU090.2014 (3 October 2019) following NaickState CAV0019 0019 of 20 8: 1 November 2018 [2018] FJSC 24 and Saukelea v State [2018] FJCA 204; AA.2015 (29 November 2018)
‘[36] i>Thus, the Supreme Court appeaappears to formulate a two tier test. Firstly, ignoring the dock identific of the appelappellant whether there was sufficient evidence on which the assessors could es theion tion that he was was guilty, and on which the judge could&#ind him guilty. Seco Secondly, whether the judge   convictedappellant, hnt, had there been no dock identification ; In my n my view, the first thresholates e quantity/sufficufficiency of the evidence available sans the dock identification and the the second threshold is whether the qualiedibiof the available able evideevidence without the dock identification is capable of proving the accused’s identity beyond reasonable doubt. Of course, if the prosecution case fails to overcome the first hurdle the appellate court need not look at the second hurdle. However, if the answers to both questions are in the affirmative, it could be concluded that no substantial miscarriage of justice has occurred as a result of the dock identification evidence and want of warning and the proviso ttion 23> (1) of the Court peal Aeal Act would apply and appeal would be dismissed[20] Even on tplicaof the above test, ignoring the dock identification there was sufficient evidencedence on w on which the assessors could expressopinion that the appe appellant was guilty and the judge would honviche aphe appellant, evt, even if there had been no;docktification of him.
[21] The trial judge had directed the the assesassessors to the evidence available agains appe including his hais having ving been pointed at by the appellant at the police station at paragraphs 25-29 and the appellant’s case from paragraphs 32 and 33 of the summing-up but not even referred to dock identification as an item of evidence to be relied upon by the assessors. Thus, the assessors had brought a verdict of guilty on the rest of the evidence. He had clearly warned the assessors on Turnbull rules at paragraph 37 and given very fair directions on the defence evidence at paragraphs 38-40.
[22] Therefore, I do not think that the first ground of appeal has a reasonable prospect of success.
02nd ground of appeal
[23] The appellant argues that the trial judge should have directed the assessors that the robbed items did not belong to the complainant in the course of his directions in paragraph 25(g) of the summing-up.
[24] This argument is based on the assumption that those items in fact did not belong to the complainant but to Quality Power Engineering Ltd. It is difficult to understand why the prosecution had mentioned that in the information. The complainant on his part had rejected the suggestion to that effect by the appellant under cross-examination. Once rejected that remained a suggestion and did not become evidence. The fact is that there was no evidence that the lost items in fact belonged to the said company and the complainant was attempting to pawn someone else’s property. Therefore, there was no factual basis for the trial judge to have informed the assessors that those items belonged to the company named in the information.
[25] In any event, as stated by the trial judge the ownership of the robbed items did not matter as they were in the complainant’s possession at the time the appellant and the other accused took them away from him or appropriated them.
[26] The appellant’s position that Livai came and sold the two grinders to him was not corroborated by the DW2 Sakiusa Bolea with whom the appellant claimed to have had grog throughout the night. Thus, the man thrust of the appellant’s defence was cut across by DW2. In the circumstances the trial judge’s directions at paragraph 35 (read with paragraphs 6-12) on the assessment of credibility and reliability of witnesses for both sides were adequate.
[27] Therefore, the second ground of appeal has no reasonable prospect of success.
03rd ground of appeal
[28] One of the complaints of the appellant is that Livai had been allowed to get off scot-free when he was clearly an accomplice. However, the state has submitted that Livai had been dealt with separately as he was a juvenile at the time of committing the offence.
[29] The rest of the appellant’s argument on the dock identification had been dealt with under the first ground of appeal. Regarding his suggestion that the trial judge had not adequately analysed the evidence in the judgment other than his analysis or comments in the summing-up, one needs to remember the trial judge’s obligation when agreeing with the assessors.
[30] In Waininima v State [2020] FJCA 159; AAU0142.2017 (10 September 2020) having examined several past decision I concluded
‘[19] What could be ascertained as common ground is that when the trial judge agrees with the majority of assessors, the law does not require the judge to spell out his reasons for agreeing with the assessors in his judgment but it is advisable for the trial judge to always follow the sound and best practice of briefly setting out evidence and reasons for his agreement with the assessors in a concise judgment as it would be of great assistance to the appellate courts to understand that the trial judge had given his mind to the fact that the verdict of court was supported by the evidence and was not perverse so that a judge’s agreement with the assessors’ opinion is not viewed as a mere rubber stamp of the latter.
‘[20] ....................., a judgment of a trial judge cannot not be considered in isolation without necessarily looking at the summing-up, for in terms of section 237(5) of the Criminal Procedure Act, 2009 the summing-up and the decision of the court made in writing under section 237(3), should collectively be referred to as the judgment of court. A trial judge therefore, is not expected to repeat everything he had stated in the summing-up in his written decision (which alone is rather unhelpfully referred to as the judgment in common use) even when he disagrees with the majority of assessors as long as he had directed himself on the lines of his summing-up to the assessors, for it could reasonable be assumed that in the summing-up there is almost always some degree of assessment and evaluation of evidence by the trial judge or some assistance in that regard given to the assessors by the trial judge.
[21] This stance is consistent with the position of the trial judge at a trial with assessors i.e. in Fiji, the assessors are not
the sole judges of facts. The judge is the sole judge of facts in respect of guilt, and the assessors are there only to offer their
opinions, based on their views of the facts and it is the judge who ultimately decides whether the accused is guilty or not (vide
Rokonabete v State><[2006] FJCA 85; AAU0048.2005S (22 March 2006), Noa Maya v. The State [2015] FJSC 30; CAV 009 of 2015 (23 October 2015] and Rokov State
[31] Therefore, there is no s no reasonable prospect of success in then the third ground of appeal.
04th ground of appeal (sentence)
[32] The appellant argues that the trial judge had applied the wrong sentencing tariff of 08-16 years of imprisonment set in Wise v State [2015] FJSC 7; CAV0004.2015 (24 April 2015) and taken 08 years as the starting point. The tariff in Wise was set in a situation where the accused had been engaged in home invasion in the night with accompanying violence perpetrated on the inmates in committing the robbery.
[33] The factual background of this case may not exactly fit into the kind of situation court was confronted with in Wise. Neither is this a case of simple street mugging as identified in Raqauqau v State [2008] FJCA 34; AAU0100.2007 (4 August 2008) where the Court of Appeal set the tariff for the kind of cases of aggravated robbery labelled as ‘street mugging’ at 18 months to 05 years with a qualification that the upper limit of 5 years might not be appropriate if certain aggravating factors identified by court are present. Nor does it appear to be similar to offences of aggravated robbery against providers of services of public nature including taxi, bus and van drivers where the settled range of sentencing tariff is 04 years to 10 years of imprisonment subject to aggravating and mitigating circumstances and relevant sentencing laws and practices [vide Usa v State [2020] FJCA 52; AAU81.2016 (15 May 2020)].
[34] There does not appear to be a settled rage of sentences for the kind of aggravated robbery the appellant had committed against the complainant. Therefore, the trial judge cannot be unduly criticised for taking a starting point of 08 years based on Wise and ending up with the ultimate sentence of 09 years, 06 months and 20 days with a no-parole period of 07 years, 06 months and 20 days.
[35] The Court of Appeal held in Qalivere v State [2020] FJCA 1; AAU71.2017 (27 February 2020) that
‘19...............When the learned Magistrate chose the wrong sentencing range, then errors are bound to get into every other aspect of the sentencing, including the selection of the starting point; consideration of the aggravating and mitigating factors and so forth, resulting in an eventual unlawful sentence.’
[36] However, it is the ultimate sentence 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 [Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006)]. In determining whether the sentencing discretion has miscarried the appellate courts do not rely upon the same methodology used by the sentencing judge. The approach taken by them is to assess whether in all the circumstances of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies within the permissible range [Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015)].
[37] It appears to me that a sentence of less than the lower end of tariff for home invasions (i.e. less the 08 years) would have been appropriate in the case of the appellant so as the sentence to be proportionate to the gravity of the offence in the light of existing sentencing tariff regimes for different kinds of aggravated robbery.
[38] Nevertheless, whether the ultimate sentence of 09 years, 06 months and 20 days imposed on the appellant is justified or not should be decided by the full court in view of the possible sentencing error of applying Wise tariff. If so, the full court would decide what the ultimate sentence should be exercising its power to revisit the sentence under section 23(3) of the Court of Appeal Act after a full hearing.
[39] For the above reasons, though I cannot affirmatively say that the appellant has a reasonable prospect of success I tend to grant leave to appeal against sentence.
Order
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
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