Karan v The State [1995] FJHC 108; Haa0009d.95s (29 June 1995)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0009 OF 1995

BETWEEN:

RAJESH KARAN
Appellant

AND:

THE STATE
Respondent

Counsel: Mr. T. Fa for Appellant
Miss E. Rice for Respondent

Hearing: 29th June 1995
Decision: 29th June 1995

ORAL DECISION OF PAIN J.

The Appellant was charged in the Magistrates Court under Section 224(g) of the Penal Code. The charge reads:

Statement of Offence

Act With Intent to Cause Grievous Bodily Harm Contrary to Section 224 (g) of the Penal Code Cap. 17.

Particulars of Offence

Rajesh Karen s/o Gau Karan on the 2nd day of January 1995 at Nasinu 9 miles in the Central Division with intent to do some grievous harm to Tamina Bano d/o Abdul Wahid, unlawfully threw inflammable liquid namely kerosene on the said Tamina Bano d/o Abdul Wahid.

The maximum penalty for an offence under this Section is life imprisonment.

The Appellant pleaded guilty to the charge in the Magistrates Court. He was convicted and sentenced to three years imprisonment. The Appellant filed a petition of appeal containing four grounds. In support of the appeal, Counsel for the Appellant made submissions that amounted to a repetition of those grounds stated in the petition with a little elaboration. No reference was made to any legal authorities, the particular facts of the case or the circumstances of the offender. As a result the submissions of Counsel for the Respondent were extremely brief.

There are some aspects of this case that cause me extreme disquiet. However each party is represented by Counsel and this Court can only determine the matter in terms of Part X of the Criminal Procedure Code. This means that the appeal must be considered on the record of the Magistrates Court and on the grounds contained in the petition of appeal.

The first thing to be noted is that the petition is an appeal against conviction only. Paragraph 3 states, "That your Petitioner desires to appeal against conviction upon the following grounds". The four grounds are then set out.

The immediate difficulty for an appeal against conviction is Section 309 (1) of the Criminal Procedure Code.

This states:

"No appeal shall be allowed in case of an accused person who has pleaded guilty and has been convicted on such plea by a Magistrates Court except as to the extent or legality of the sentence".

On the record there is nothing to indicate that the plea of guilty was in any way equivocal. The charge was read and explained to the Appellant. He pleaded guilty. That is conclusive and final. For completeness I add, that there has been no suggestion that the Appellant had a defence to the charge or was for any other reason, not guilty of the offence charge.

The grounds of appeal, particularly ground 4, are pertinent to an appeal against sentence. The submissions in relation to sentence were not opposed by Counsel for the Respondent. In fairness to the Appellant I will deal with each of the four grounds.

The first ground is that the conviction is bad in law and should be set aside as the Appellant pleaded guilty under a representation by a police prosecutor that reconciliation was possible in law and could only be done after a plea of guilty was entered before the Magistrate. No authority was cited for this legal submission. There is no support for it in the record of the Magistrates Court. The Appellant was given the opportunity to plead in mitigation. Having previous convictions he would be aware of Court procedure. When given that opportunity to speak he did not mention a reconciliation.

In all the circumstances, there is nothing to support the contention of the Appellant. The record unequivocally records a plea of guilty and in terms of Section 206(2) of the Criminal Procedure Code, the Magistrate proceeded to convict and sentence. This Court cannot go behind that.

The second ground is that the Magistrate erred in law and fact by dealing with the Appellant on his plea of guilty without explaining the seriousness of the charge and adjourning to allow the Appellant to seek proper legal advice. Again no authority has been cited for this legal submission. I know of no legal requirement for this to be done. It is not done as a matter of practice, even in this Court. There was nothing to indicate the real seriousness of the charge until the Defendant had pleaded guilty and the facts had been given. In accordance with the normal practice and the provisions of the Criminal Procedure Code, the Magistrate then proceeded to convict and sentence the Appellant.

The third ground is that the Magistrate erred in law and in fact in failing to call for a Probation Officer's Report before sentencing the Appellant. Again there is no legal requirement for this to be done. In practice it is not regularly done. Furthermore for such a serious offence, probation would not be seen as a likely sentence.

The fourth ground is that the sentence imposed was excessive. Counsel for the Appellant made no reference whatever to the facts of this offence or the particular circumstances of the offender. No authorities were submitted to suggest that the sentence is out of line, with sentences imposed in similar or comparable cases. The Magistrate viewed the offence seriously. No challenge is made to that assessment. The maximum sentence under Section 224 of the Penal Code is life imprisonment. The Defendant had previous convictions which show some propensity for some sort of violent conduct. No material whatever has been placed before this Court to show that a sentence of three years imprisonment for this particular offender committing this particular offence is outside the range that could be reasonably imposed.

Accordingly no basis has been established for any of the grounds advanced in support of the petition of the appeal.

The appeal is dismissed.

JUSTICE D.B. PAIN

HAA0009D.95S