Tawake v The State [2002] FJHC 109; HAA0017J.20002S (13 May 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0017 OF 2002

Between:

ASESELA TAWAKE
Appellant

And:

THE STATE
Respondent

Hearing: 10^th May 2002

Ruling: 13^th May 2002

Counsel: Appellant in Person
Mr F. Vosarogo for Respondent

JUDGMENT

The Appellant appeals against a sentence of three years imprisonment imposed on him by the Suva Magistrates= Court on 21^st January 2002, for the following offence:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

ASESELA TAWAKE and TIMALETI UTOVOU on the 22^nd day of October 2001 at Suva in the Central Division robbed Park Guinam cash US$10,000.00, F$1,000.00 and assorted jewellery valued at $20,000.00 and immediately before such robbery threatened to use personal violence on the said Park Guinam.

SECOND COUNT (alternative)

Statement of Offence

RECEIVING STOLEN PROPERTY: Contrary to Section 313(1) of the Penal Code, Act 17.

Particulars of Offence

ASESELA TAWAKE and TIMALETI UTOVOU between 22^nd day of October 2001 and 24^th day of October 2001 at Suva in the Central Division, received one seiko wrist watch valued at $200.00, one gold medal valued at $400.00, one gold button valued at $200.00, one gold chain valued at $50.00, three purses valued at $7.00, US$2,200.00 and F$87.94, the property of Park Guinam, knowing the same to have been stolen.

The same sentence was imposed on the second accused, who is the wife of the Appellant. Her appeal against sentence was dismissed on 15^th March 2002.

The Appellant=s appeal was originally against sentence. However in his written submissions at the hearing of the appeal, he also submitted that he had not understood the significance of his plea of guilty.

The State opposes this appeal, saying that the plea was clearly unequivocal and that the sentence was not harsh or excessive.

The Appellant did not plead guilty when the case was first called on 26^th October 2001. Indeed on the 29^th of October he was represented by counsel and he pleaded not guilty. Counsel applied for bail (which was refused) and the case was called on several occasions before the Appellant pleaded guilty on 7^th January 2002, on Count 2 which was alternative to the first count of Robbery with Violence. On that date he was unrepresented. The facts were outlined. The prosecution said that the Appellant and his wife were both arrested on 24^th October 2001 with the stolen items in their possession. On interview the Appellant said he had received them from another person but could not or would not disclose the name of that person to the police. He admitted the facts and admitted two previous convictions. He was then sentenced to three years imprisonment. Discount had been given for the plea of guilty.

Although the Appellant was unrepresented when he pleaded guilty, the charge was clearly explained to him, and he chose to plead guilty to the alternative count. There is nothing in the record to indicate that the plea was a nullity.

Further the sentence was neither harsh nor excessive. The learned Magistrate took all relevant matters into account and gave the same sentence to the Appellant and to his wife. In particular he referred to the need to pass deterrent sentences in respect of receivers of stolen property, saying that robberies were fuelled by the availability of receivers of stolen property. I agree entirely with his remark.

This appeal is wholly dismissed.

Nazhat Shameem
JUDGE

At Suva
13^th May 2002