Bole v The State [2002] FJHC 88; HAA0006j.2002b (18 September 2002)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 6 OF 2002
(Taveuni Mag. Ct. Crim. Case No. 330/01)

Between:

LASARO BOLE
Appellant

v.

STATE
Respondent

Ms. M. Waqavonovono for the Appellant
Mr. J. Rabuku for the State

JUDGMENT

This is an appeal against conviction and sentence.

I had given a short judgment on this appeal on 26 August 2002, the day of the hearing, and stated that reasons will be given later. This I now do.

In the Magistrate’s Court at Labasa the appellant was charged with the offence of larceny of cattle contrary to section 275 of the Penal Code, Cap. 17.

The Particulars of Offence reads:

Lepani Temo and Lasoro Bole on the 1^st day of November, 2001 at Vatuwiri Estate, Taveuni in the Northen Division stole a heifer valued at $300.00, the property of the said Vatuwiri Estate.

On 12 November 2001 he was sentenced to imprisonment for two years.

He now appeals.

The grounds of appeal are as follows:

Appeal Against Conviction

1. THAT the Learned Magistrate erred in law when he convicted the Appellant for larceny of cattle, contrary to Section 275 of the Penal Code, Cap. 17, on a defective charge.
   
2. THAT the Summary of Facts produced by the prosecution did not prove the charge of larceny of cattle, contrary to Section 275 of the Penal Code, Cap. 17.
   

Appeal against Sentence

3. THAT the Learned Magistrate erred in law when he did not grant the Appellant any opportunity to mitigate after entering a conviction and before pronouncing sentence against him in this case.
   
4. THAT sentence of two years imprisonment imposed on the charge of larceny of cattle, contrary to Section 275 of the Penal Code, Cap. 17 is harsh and excessive in all the circumstances of this case, and is disproportionately severe treatment.
   

Ms. M. Waqavonovono of the Legal Aid Commission appeared for the appellant and made submissions on his behalf with which I entirely agree.

The learned counsel for the State concedes the appeal against both conviction and sentence. He agrees that the proceedings are a nullity.

Mr. Rabuku submitted that this is a clear case of ‘bad recording’ in the Magistrate’s Court. There is no record of charge having been read and explained to the accused. No opportunity was given to him to speak in mitigation before passing sentence. He said that the sentence is on the high side and in the past 12 months’ imprisonment has been imposed by this Court for this type of offence.

Consideration of the appeal

The arguments in this appeal have been very well put by Ms. Waqavonovono and I adopt them here.

Section 309 of the Criminal Procedure Code (CPC) provides for appeal against sentence only. This was an equivocal plea of guilty by an unrepresented accused. There is nothing in the Record to show that the accused understood the charge if it was read to him. In such situation the Fiji Court of Appeal allows appeal against conviction to be entertained (Michael Iro v R, C.A. 12 F.L.R. 104 and Kuruka Bogiwalu & Another v State, unreported, Cr. App. No. 6/96S followed in Peni Varawa & Others v The State, unreported, Cr. App. No. 2/02).

It is clear from the Record of the Magistrate’s Court herein that the charge was not put to the accused at all. This was a serious error on the part of the learned Magistrate as it contravenes s206(1) of CPC which provides:

“The substance of the charge or complaint shall be stated to the accused person by the court and he shall be asked whether he admits or denies the truth of the charge.”

I fail to understand why such a glaring and fatal error was made on the part of an experienced Magistrate. When I became a First Class Magistrate (now called Resident Magistrate) in 1972 I adopted the following format in every criminal case which came before me which prevented such an error as the above being made:

Charge read and explained & understood

Plea:

Facts outlined

Facts admitted

Convicted as charged.

In this case not only the charge was not put to the accused, but the facts were not even outlined in the usual and proper manner to enable the accused to properly understand whatever facts were stated. These facts did not make out the charge. The summary of facts refer to removal of the hind legs of a heifer and leaving the animal to die. However, the statement of offence reads “larceny of cattle” and the particulars of offence refer to the appellant (with his co-Defendant) as having stolen a heifer valued at $300.00. It is clear that there is uncertainty in the charge as it could be that the appellant admitted the lesser charge under s323 of the Penal Code which deals with the injury of animals.

In the circumstances of this case the following extract from the judgment in Bogiwalu (supra, p5) is apt and s309(1) will not apply:

“If it can be demonstrated that an unrepresented accused has pleaded guilty in a manner that is in any way equivocal or uncertain, or that the accused entered the plea when he did not have a full understanding of the effect of the plea, namely that he was admitting that he committed the offence with which he has been charged, an appeal against conviction may be entertained despite the guilty plea. In that event, s 309(1) will not apply, because there has not been an effective and binding plea of guilty.”

In view of my findings on ‘conviction’ I do not need to consider the appeal on ‘sentence’ suffice it to say that there is merit in Mr. Rabuku’s observation on this aspect. Hence I shall not deal with the matter of ‘sentence’.

In the outcome, for the above reasons the appeal succeeds. The entire proceedings is declared a nullity. The conviction entered and sentence passed on the appellant in the Magistrate’s Court are quashed because errors of law discussed in this judgment.

D. Pathik
Judge

At Labasa

18 September 2002