Vakaciwa v The State [1996] FJHC 32; Haa0023j.96s (2 August 1996)

Fiji Islands - Vakaciwa v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0023 OF 1996

BETWEEN:

KE VAKACIWA
Appellant

and:

STAT Respondent

Mr. M. Raza for the Appellant
Mr. W.W. Clarke wr. Wilkinson for the State

JUDGMENT

This is an appeal by the appellant against his conviction antence on his own plea on 21 November 1995 in the Magistratstrate's Court at Nausori on the charge of rape contrary to sections 149 and 150 of the Penal Code Cap. 17.

The grounds of appeal filed are as follows (but the ground pertaining to defilement was abandon the hearing):

(a) THAT the Learned Magistrate erred in law and in fact in convicting the Appellant for Rape and whereas the Charge ought to have been Defilement - Contrary to Section 156(1) (a) of the Penal Code, Act. 17.

(b) THAT the Learned Trial Magistrate failed to enquire from the Appellant who was unrepresented the facts and circumstances of the case.

(c) THAT the sce for Defilement would have been far less than that acted cted upon by the Learned Trial Magistrate.

The grounds essentially boil to, namely, (a) that the learned trial Magistrate erred in entering a plea of guilty againagainst the appellant whose admission did not amount to an unequivocal plea of guilty and (b) that the sentence was excessive.

The Particulars of Offence are that the appe "on the 14th day of November, 1995 at span>Koro Primary School compound in the Eastern Division, had carnal knowledge of a girl namely LUISA ALLICE MORRIS without her consent".

Mr. Raza for the appellant questions whether what the learned Maate had recorded in regard to the plea is sufficient compliompliance with the provisions of s.206(2) of the Criminal Procedure Code. He contends that s.206(2) would be 'meaningless' if the actual words used by the appellant were not recorded. He says that the Magistrate ought to have inquired further if the appellant understood the facts. He further says that the medical evidence does not support the charge. He says that the Magistrate should have inquired what the appellant said in the interview. As for sentence he said that the Magistrate had made up his mind to impose a severe sentence in view of the remarks he made before sentencing when he said that "I shall pass sentence on you on the very day that you suppose to sit for your F.S.L.C. i.e. 21.11.95 at 9.30 a.m." (p.2 of record).

Mr. Clarke for the State submitted that it was an unequivocal plea of guilty. Tcts constitute the offence ence of rape. He said that the appellant who was about nineteen years old was a Form VI student and is sufficiently educated to understand the charge and the facts as outlined to him in Court. He said that the appellant pleaded guilty and admitted the facts as stated.

I shall now deal with Mr. Raza's main contention that the provisions of s206(2) have not been ied with by the learned Magd Magistrate when he allegedly did not note the actual "words used by" the appellant when the charge was put to him (although he does not say what the "words" were) and also with his contention that the learned trial Magistrate ought to have "investigated" further after the facts were outlined.

This very point aised in the case of THE DIRECTOR OF PUBLIC PROSECUTIONS and RAM SAMI NAIDU s/o Yankatsakatsami Naidu (Crim. App. No. 34/84 FCA). This issue involves a consideration of s206(1) and (2) which provides:

"(1) The substancehe charge or complaint shall be stated to the accused psed person by the court and he shall be asked whether he admits or denies the truth of the charge.

(2) If the accused person admits the truth of thrge, his admission shall bell be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there shall appear to be sufficient cause to the contrary."

(underlining mine for emphasis)

It is true that s206(2) should be complied with (BARRY JENNIONS v REGINAMJOSEFA NAIVALARUA and REGINAM Crim. App. 46/87 where "change of election" was not recorded by the Magistrate and the Magistrate proceeded to trial and convicted and sentenced the accused. There SHEEHAN J said that the Magistrate's Court "is a court of record and failure to record that the requisite procedures were followed is an immediate indicator that that Court has exceeded its jurisdiction".

Here, there can be no doubt whatsoever that the charge was properly put to the ad for the record states as s as is usually recorded in that busy jurisdiction (at p.1) "Charge read and explained: Understood: Election: Magistrates Court trial. Plea: Guilty". Undoubtedly the accused did plead "guilty". Even if there was any doubt in that regard, but I find there was none, it was allayed by the accused acknowledging the facts as correct when he in no uncertain terms said that "I admit the facts as outlined by the Police" which is a clear indication that he knew what he was answering to. When I say this I should not be taken to mean that this admission forms part of the plea. Even in mitigation the appellant said "..... I now regret for committing such a serious offence. May I be given another chance ....." As far as medical report is concerned I see no merit in the argument put forward. Its contents do support the appellant's own admission that he had sexual intercourse with the complainant. There is nothing there to suggest otherwise.

There is no doubt that there has to be an unequivocal plea of guilty. On this aspect GRANT ACJ (later Chief Justice) in D.P.P. v JOLAME PITA 20 FLR p5 at p6 stated:

p class=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> "On a plea of guilty to any offence the qun of what is admitted by anby an accused should be ascertained with certainty, as if facts are put before a court or explanations given which derogate from the plea of guilty or which appear to render equivocal what would otherwise have been an unequivocal plea, then the plea must be changed to one of not guilty and the case set down for hearing.

On the other hand, if the facts which are admitted clearly establisablish all the ingredients of the offence charged and any dispute is confined to facts which, in the opinion of the trial Magistrate, are not material to sentence, then he should say so and may proceed to sentence without resolving the conflict."

Mr. Raza argues that the Magistrate shoave inquired further whether the accused understood the face facts.

The question is whether the Magistrate was required to do so or nothe circumstances of this case for the appellant had alreadlready admitted the facts as outlined. The answer to this is definitely in the negative. The record is abundantly clear as to the procedure followed by the Magistrate and this cannot be flawed as great care was taken to make certain that he understood the charge and that he really wished to plead guilty. It is an established practice not to entertain matters of this nature on appeal, which was not, but which could have been set up by the accused when the charge was put to him and facts outlined albeit he was unrepresented there. In considering whether the plea is an equivocal or an unequivocal plea, one looks at solely to what happened before the Magistrate to see whether the Court acted properly in accepting an apparent plea of guilty as an unequivocal plea. Now through his counsel he is asking the appellate Court to in effect be allowed to change his plea by raising the alleged irregularity. If that were permitted there would be no end to trials and subsequent appeals.

When the charge was read to the appellant and his plea taken, there is nothing in the Record to indicate that the Magistrate has not properly recorded what was actually said by the appellant in response to the charge. I find that the Magistrate had acted in the best interests of the appellant and no miscarriage of justice had occurred. He has fully complied with the provisions of s206. There is nothing in the record to suggest that the plea was equivocal.

It is to be borne in mind that where an accis unrepresented, as was held in MICHAEL IRO v REGINAM (12FLR 104 FCA) that:

"...it is the of a trial judge ... to exercise the greatest vigilance toce to ensure that the accused person fully comprehends exactly what the plea of guilty involves".

In this case there was no evidence of any ambiguity in the plea for if there was any it will to be treated as a plea ofea of "not guilty" and the trial would have to be proceeded with in the ordinary way (LORD READING CJ in REX v GOLATHON (1915) 84 LJ K.B 788 at p.759).

Apart from all this, HALSBURY Vol 10 3rd Ed. para. 742 states:

ass=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> "In the case of an undefended prisoner care must be taken that he fully understands the elements of the crime to which he is pleading guilty, especially if a good defence is disclosed in the deposition."

The point that Mr. Raza has raised has been the subject of many decisions in the East African Courts. In East Africa there is a similar provision as s206 requiring, inter alia, that the plea be recorded in the actual words used by the accused and the decisions have even gone to the extent of requiring the Magistrate to explain to the accused person all the essential ingredients of the offence charged. The procedure that is followed in East Africa is in conformity with the guidelines set out by the Court of Appeal at Nairobi in ADAN v REPUBLIC 1973 EACA p.445.

However, the argument that Mr. Raza has raised was dealt with in NAIupra) where it was rejectedected. Hence the answer to Mr. Raza's argument is to be found in that case. It means therefore that I am also bound to reject his main contention referred to hereabove pertaining to the interpretation of s.206.

I therefore find that Mra's main contention can be rejected outright on the authority of NAIDU (supra) when when the Fiji Court of Appeal clearly and succinctly stated as follows how s206 ought to be interpreted particularly when it states that only the substance of the charge be stated to the accused and I adopt them here:-

"But section 206(1) requires only thatsubstance of the charge be e be stated to the accused by the court. If the learned judge intended by his remarks to set up a more stringent standard as a matter of law or binding practice, then we must hold, with respect, that he is mistaken. One can, of course, envisage cases of a technical nature in which it may be necessary to embark on such a detailed explanation. But we are satisfied that there was no need on the Magistrate to go that far in the present circumstances, where the very words of the charge were in such well understood terms as "enter" and "steal"." (underlining mine for emphasis).

In the outcome for the above reasons on the facts of this case I find the provisions of s206(2) h(2) have been properly and fully complied with by the learned Magistrate and the plea was unequivocal on an examination of the record. I am therefore satisfied that the appellant made an unequivocal admission of guilt.

The appeal againnviction therefore fails.

Regarding sentence, against which the appellant has also appealed, there can be no doubt that a particularly heavy sentence was imposed, that is, the maximum within the Magistrates Court's jurisdiction for the reason stated by the Magistrate before he sentenced him.

To succeed in an appeal against sentence, the court has to be satisfied that there exist to a sufft extent circumstances enti entitling it to vary the order of the Court below. These are as stated in OGALO son of OWOURA v R (1954), 21 EACA 270 as follows:

"The principles upon which an appellate court will act in exercists jurisdiction to review siew sentences are firmly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial judge unless, as was said in James v. R. (1950), 18 E.A.C.A. 147, 'it is evident that the Judge has acted upon some wrong principle or overlooked some material factor.' To this we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case: R. v. Shershewsky (1912), C.C.A. 28 T.L.R. 364."

The appellant is a first offenged 18 years but this does not mean that the nature and seriousness of the offence and the the fact that the chastity of a girl was shattered at such a tender age of 12 years which might instil into her mind fear and utter revulsion for the sexual act for the rest of her life are matters that can be ignored lightly. The trial magistrate said that the victim "shall suffer psychological trauma throughout her lifetime, making her permanently disabled". The offence of rape carries a maximum of life imprisonment and corporal punishment, and a sentence of 5 years for a first offender is, in my opinion, well merited.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> However, testion that arises in this case is whether the appellant should have received the maximum smum sentence within the Magistrate's powers of sentencing despite his plea of guilty and other mitigating factors. Observations on the circumstances in which it may not be necessary for a sentence to be discounted to recognise a plea of guilty and also when discounts were allowed were made in the case of SHARON ELIZABETH COSTEN (1989) 11 Cr. App. R(S) C.A. Delivering the judgment of the Court LORD LANE C J at 183 said as follows which I consider apt:

The general principle of discount has been examined in a nuof cases. Our attention hasn has been drawn to one in particular, the case of Barnes (1983) 5 Cr. App. R.(S.) 368. I read from the headnote as follows:

"Seven years' imprisonment (the max for attempted rape reducedduced to six, where the appellant had pleaded guilty and received no credit for his plea.

/p>

The appellant pleaded guilty to attempted rape and going equipped for burglary. He had collected his two daughters, together with a friend of theirs, from a railway station one night, with a view to taking the friend to her own home. Instead, he took her to his own house, sent his daughters to bed, and subsequently attempted to rape the friend, squeezing her throat and threatening her with a knife. The appellant, who had a variety of previous convictions had been released from prison nine weeks before the present offence after serving a sentence of imprisonment for rape and indecent assault....

Held: having pleaded guilty, and thereby having sthe victim the ordeal of giof giving evidence, the appellant was entitled to some reduction below the maximum sentence for the offence which he had committed...."

Mr. Justice Leonard giving the judgment of thrt had this to say:

/b>

"This Court takes the view that suion is well founded. The mahe maximum sentence for the offence of attempted rape is seven years' imprisonment. Having pleaded guilty, and therefore having saved the young girl the ordeal of going into the witness box and giving an account of the horrifying events which occurred on the evening of the offence, the appellant is clearly entitled to some reduction below the maximum sentence. We notice in passing that it is true that he might have had a consecutive sentence for ther offence wnce which is the subject of the other indictment, but did not do so. Nevertheless we are of the view that he is entitled to some reduction below then years for having pleaded guilty on the more serious mattematter. Clearly the reduction cannot be a substantial one, because the offence was itself very serious."

But there are certain exceptions, likewise well authentican the authorities, to that that general rule that discount will be allowed for a plea of guilty. The first and most important exception is the protection of the public. Where it is necessary that a long sentence, if necessary the maximum sentence, should be passed in order to protect the public, in those circumstances a plea of guilty may not result in any discount.

And at p185 weference to SULLIVAN (1987) 9 Cr. App. R. (S) 492 he said that:

"by pleading guilty the appellantmake it unnecessary for the victim to relive her experienceience. Consequently the sentence was reduced from 14 years to 12 years".

In this case the appellant has exonerated the complainant from the trauma of giving evidence of an intimate nature and has shown remorse which are strong mitigating factors.

The learned Magistrate's anxiety is appreciated when he commented as above, m to protect children by dety deterrent sentence. The specific comment referred to hereabove before sentencing was rather unfortunate and it would do well for a Magistrate to refrain from doing so.

In this case I find that the appellant who was a high school studf very young age has already been greatly deterred.

In all these circumstances discount should have been given for the plea of guand other mitigating factoractors however small it may be for reasons I have stated hereabove.

I therefore make a reduction in the sen, that is, quash the sentence of 5 years' imprisonment and and substitute therefor a sentence of 4 years' imprisonment.

To that exteis appeal against sentence is allowed.

As already stated the appeal against conviction is dismissed.

1"> At Suva
2 August 1996

Haa0023j.96s