Raura v The State [2001] FJHC 76; Haa0059j.2001s (5 October 2001)

Fiji Islands - Raura v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0059 OF 2001S

(Suva MC Criminal Case No. 996 of 2001)

BETWEEN:

SIMIONE RAURA

Appellant

AND:

THE STATE

Respondent

Appellant in Person

Mr B. Solanki for Respondent

Hearing: 28th September 2001

Judgment: 5th October 2001

JUDGMENT

This is an appeal against sentence. On 15th May 2001 the Appellant was convicted on his plea of guilty of the following offence:

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(b) of the Penal Code Act 17.

Particulars of Offence

SIMIONE RAURA with three others on the 14th day of April 2001 at Suva in the Central Division, robbed DHANSUKH PATEL s/o JELU BHAI PATEL the sum of $12,000.00 and at the time of such robbery threatened to use personal violence on the said Dhansukh Patel.

The matter was called for the first time on 17th April 2001 when the Appellant pleaded not guilty. He changed his plea on the 15th of May 2001 and agreed to the facts outlined by the Prosecution. He was convicted and sentenced to four years imprisonment backdated to the date of remand pending trial. He now appeals against this sentence on the ground that it is harsh and excessive, particularly when his accomplice only received a term of two years imprisonment.

The facts of the case were that the complainant one Dhansukh Patel an owner of a supermarket in Navua, was returning to his home in Toorak on 14th April 2001 at 8.15pm. He had $10,000 cash in his possession, in a brown bag. While at his doorstep, the Appellant and three others appeared, grabbed the bag of cash and threatened the complainant’s brother’s wife and the driver of the car. They assaulted the complainant’s brother using a pinch bar, and a cane knife. The complainant received injuries. The four offenders including the Appellant were apprehended by the police and were found in possession of the brown bag, and implements including a knife and pinch bar. Under caution the Appellant admitted the offence and told the police how it was planned and where the robbery took place. The Appellant has 17 previous convictions, 5 of which are robbery.

At the hearing of this appeal, the Appellant also submitted that the plea was ambiguous because he was not represented. State Counsel opposed the appeal saying that the Appellant understood the charge, and that the sentence was within the tariff.

Plea

The court record for 17th April reads:

“Election Put: elects Magistrates Court hearing. Charge read explained and understood - Yes Not Guilty. 1st phase disclosure served to court today.”

There is no record that the learned Magistrate explained to the Appellant his right to counsel under section 28(1)(d) of the Constitution. The right was not explained, and therefore there cannot have been a waiver of the right. I have said before (Surend Singh & Others -v- State Crim. App. 79/2000) and continue to say that the numbers of appeals against convictions would be considerably reduced, if magistrates informed unrepresented accused persons, of their constitutional right to counsel. This right should not be taken lightly by the court system, and the right cannot be assumed to be waived, when the magistrate has not told the accused of it before the plea is taken.

In this case the Appellant was not told of this right, and he now says that he was thereby prejudiced. The result is, that the appellate court must scrutinise the proceeding with the greatest care, to ensure that the Appellant was not prejudiced by lack of counsel.

The record shows that the charge is clearly worded, and that the accused in fact pleaded not guilty to it at first call. He changed his plea a month later. Further on 1st May 2001, it appears that there was some discussion between the Appellant and the Magistrate about legal representation because the court is recorded has having said “Police to assist and see DLAC”. I assume this meant Director, Legal Aid Commission.

These factors, coupled with the fact that the Appellant is no stranger to the court system persuaded me that the plea was unequivocal and that the Appellant was not prejudiced by lack of legal representation.

Sentence

The learned Magistrate started at five years imprisonment, gave a one year’s discount for the guilty plea and arrived at a final sentence of four years imprisonment. She was clearly right in principle. The tariff for Robbery with Violence with weapons is four to seven years (State -v- Ilaisa Sousou Cava Cr. Case No. HAC007 of 2000S), and by using a starting point of five years imprisonment, the learned Magistrate was being very fair indeed, to the Appellant. This is so given the assault on the complainant’s brother, and the value of the money stolen. The suggestion that an accomplice received only two years imprisonment is a matter for some concern, and is clearly the source of a sense of grievance suffered by the Appellant. State Counsel told me that he would call for the relevant police file and would consider appealing against leniency of sentence.

For the purposes of this appeal however, the sentence of four years imprisonment is not manifestly excessive, nor wrong in principle. The appeal is dismissed.

Nazhat Shameem

JUDGE

At Suva

5th October 2001

Haa0059j.01s