Chute v The State [1998] FJHC 25; Haa0063.97 (27 February 1998)

Fiji Islands - Chute v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

CRIMINAL JURISDICTION

Criminal Appeal No. 63 of 1997
(Labasa Magistrates Court Criminal Case No. 970 of 1997)

BETW>BETWEEN:

ROBERT CHUTE
Appellant

AND:

THE STATE
Respondent

P. Petaia for the Respondent

JUDGMENT

On 20 Oct1997 the Appellant appealed against a sentence of 4 years iars imprisonment imposed upon him on 14 October 1997 for an offence of arson by the Labasa Magistrates Court (M. Fernando Esq) after he was convicted on his own plea of guilty.

On 20 November 1997 further grounds of appeal, this time both against conviction and sentence were filed by Mr. Kohli after the Appellant had consulted him. Although I allowed Mr. Kohli to advance his arguments on these additional grounds of appeal the correct procedure for the filing of additional grounds was not followed and I therefore remind practitioners (including the office of the Director of Public Prosecutions) once again of the need to comply with the provisions of Sections 310 and 311 of the Criminal Procedure Code (Cap. 21) when filing appeals and when seeking to file additional grounds.

By Section 310(1) original petitions must be filed within 28 days of the decision appealed against. Under the proviso to the section the period of 28 days may be enlarged upon application to the High Court if, inter alia, there has been a delay in providing a copy of the record of the proceedings in the Magistrates Court (Section 310(2)(d)). Taken together, the Section and its proviso have the effect of excluding the need to file holding petitions pending the receipt of the record. In particular the formula whereby a petition including only a general ground vaguely alleging errors of law and fact and "reserving the right to file additional grounds upon receipt of the record" is to be avoided. There is no such right and such general grounds are in breach of the requirements of Section 311(1).

Where, a petition having already been fled, there is a wish, as in this case, to supplement the grounds the leave of the High Court must first be obtained no less than 3 days before the date fixed for the hearing of the appeal (Section 311(4)). Without such leave being properly obtained it is not lawful to argue grounds not contained in the original petition (Section 311(6)). In future I shall need a deal of persuading to overlook breaches of these provisions of the Code.

There is a second major difficulty attendant upon arguing the first of the additional grounds presented by Mr. Kohli. That difficulty stems from Section 309(1) which prevents an appeal against conviction following a guilty plea. Perhaps recognising both this difficulty and the rule that an appellate Court is, save in the most exceptional circumstances reluctant to admit further evidence on the hearing of an appeal (see section 311 (6)) Mr. Kohli did not press the first ground and I need say no more about it.

The second additional ground was based on the alleged failure by the Resident Magistrate to require the Appellant to make his election pursuant to Section 4(1) of the CPC before being required to enter a plea. While I accept that the procedure laid out in Section 206 does not properly begin until after an election has been made by an accused and that therefore the election and the plea should be kept quite separate I am not satisfied that Mr. Kohli has shown that the Appellant suffered any injustice in this case where, as the record appears to show, the Appellant was called upon to elect and plead together as one process.

The third additional ground suggests that the Resident Magistrate did not fully explain to the Appellant his right to be legally represented or the consequences of electing trial in the Magistrates Court. As pointed out however by Mr. Petaia the Appellant was one of two accused jointly charged and appearing on that day. The accused had previously appeared in a Magistrates Court and received a sentence of imprisonment for a serious offence. His co-accused was legally represented. The record shows that the Resident Magistrate took great care to explain to the Appellant the seriousness of the charge that he faced. I find no merit in this ground.

The final ground, an appeal against sentence, may conveniently be taken together with the original grounds filed by the Appellant in person. The Appellant is married with 3 children at school. He is the sole breadwinner. It is correctly pointed out that the Resident Magistrate unfortunately did not record that he had given the Appellant credit for his guilty plea. It is urged that the sentence of 4 years for arson is harsh and excessive and out of line with a sentence for a similar offence recently imposed on a prominent personage.

The omission clearly to record that the guilty had been taken into consideration was a regrettable lapse and not the first time that it has come to my attention that this particular magistrate has failed to follow established and accepted procedure in this respect. Failure overtly to note and record that credit has been given for a guilty plea tends to lead to quite easily avoidable resentment by an accused person.

A second omission unfortunately all too typical of summary proceedings nowadays was the failure properly and adequately to present and record in sufficient detail the relevant facts and matters alleged against the accused. In this case the circumstances of the fire and its consequences for the victim were far too sketchily presented by the prosecution. The Resident Magistrate should have called for further and better particulars, if necessary adjourning so that additional information could be obtained. Summary justice is not the same as rushed justice.

Having said all this, the simple fact remains that the Appellant set fire to a family's dwelling house. The fire could not be put out and the house was apparently destroyed with most of its contents.

Arson is a terrible crime. It carries a maximum sentence of life imprisonment. The community needs to be reassured that the Courts will deal condignly with those committing this offence. The function of an appellate court is not to tinker with sentences of Magistrate Courts which fall with the sentencing bracket. An appellate court is not there to substitute its own views of what the sentence should have been. It is there to correct errors of principle. In my opinion a sentence of 4 years for the offence of arson of a dwelling house imposed after a guilty plea has been taken into account is entirely proper. The appeals against conviction and sentence are both dismissed.

M.D. Scott
JUDGE

27 February, 1998