Lakaba v The State [2002] FJHC 98; HAA0034j.2001B (26 February 2002)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0034 OF 2001
(Taveuni Mag. Ct. Crim. Case No. 239/01)

Between:

PENI LAKABA
Appellant

-v-

STATE
Respondent

Mr. H. Robinson for Appellant
Mr. Bulamainaivalu for Respondent

JUDGMENT

This is an appeal against conviction and sentence of 5 years imprisonment imposed upon the appellant for the offence of rape contrary to section 149 of the Penal Code, Cap. 17 by the Magistrate’s Court at Taveuni on 13 August 2001 on his own plea of guilty.

PENI LAKABA, on the 15^th day of July, 2001 at Bouma, Taveuni in the Northern Division had unlawful carnal knowledge of a woman namely TOULIA NIULEKA without her consent.

Grounds of Appeal

The appellant at first filed the Grounds of Appeal in person but later when he was represented by counsel, ‘further’ grounds which are as follows were filed on 14 November 2001:

THAT the Learned Trial Magistrate erred in law and in fact in convicting the accused in the absence of unequivocal plea of guilty.

THAT the Learned Trial Magistrate erred in law and in fact in entering conviction against the accused in the absence of any evidence that penetration had taken place during the sexual intercourse.

THAT the Learned Trial Magistrate erred in law and in fact in convicting the accused of the offence when in fact prior to being brought to Court the accused had been influenced and coached by the police officers to admit the charge in Court.

THAT in the interest of justice and under revisionary powers of the Court the conviction ought to be set aside and retrial ordered.

THAT the sentence is harsh and excessive and wrong in principle.

Facts

The facts as outlined to Court are as follows:

Victim is a 45 years old, Spinster of Vurevure Settlement in Taveuni. On 15/07/01 the accused at about 12.00 midnight went from Bouma Village to Vurevure. He knocked at the door of house where victim was sleeping and told the owner of the house that victim’s brother wanted to see her (victim).

Victim refused to go with accused, as she was frightened to go with him. Accused entered house and grabbed the victim’s hands. Victim started yelling. Two other ladies there but couldn’t do anything as they tried to stop him. Accused managed to drag victim out to a vacant bure. Told victim to remove her clothes.

He then raped the victim by forcing his erect penis into her vagina. He forcefully had sex with her. He then ejaculated inside her vagina.

The Medical Report on the victim was produced to Court which showed ‘bruising on the (U) thigh medial aspect more than 28 hours old’ (as per diagram in the Report).

The appellant admitted the facts. He is 36 years old and is a first offender and is married with 6 children (4 of whom are in school).

Appellant’s submission

Mr. Robinson submitted that the appellant was not given the opportunity to consider the seriousness of the offence and was told by the arresting Officer to plead guilty. He said that an unrepresented person on a serious charge should be told by the Court his rights under the law. He was not asked if he wanted to be represented. This is his constitutional right under section 28 of the Constitution. To Court counsel said that although he admitted the facts his plea was an ‘equivocal’ plea of guilty. Counsel said that there was no corroboration of sexual intercourse in the medical report. On sentence, if convicted, it is harsh and excessive. He said perhaps a retrial could be ordered.

Respondent’s submission

The learned counsel for the Respondent submitted that this was an unequivocal plea of guilty. There was sufficient corroboration particularly when there is admission of facts by the appellant. On sentence, counsel said that the sentence is not harsh and excessive because prevalence of an offence is a relevant consideration when sentencing.

Consideration of appeal

I have carefully considered the submissions made by both counsel.

There was nothing wrong in the Magistrate’s handling of the case. The accused was brought before the Court; the charge was put to him; he understood the charge; he admitted the facts whereupon he was convicted. In fact he stated in mitigation that this was his first offence. He did not make any complaint of any nature to the Magistrate.

On the facts before the Court it was an unequivocal plea of guilty. The Magistrate was not required in law to do anymore than what he did when the accused appeared before him. Section 28 of the Constitution has no relevance here. If the Magistrate had any doubt when plea was taken I am sure he would have taken the necessary steps and perhaps enter a plea of not guilty. The magistrate would have been the best judge of this. The Magistrate had no doubt about the plea.

In the submission reference was made by the Respondent to s.309 of the Criminal Procedure Code (Cap. 21) which provides:

“(1) No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on such plea by a Magistrates’ Court, except as to the extent or legality of the sentence.”

The Court of Appeal in Ram Sami Naidu v. R Cr. Appeal 34 of 1984 at p.2 (unreported judgment) dealt with the meaning and effect of s.309. It stated:

“... each case must be dealt with on its own particular facts and there must be an intentional and unequivocal admission of guilty by an accused adequately informed of the substance of the charge or complaint.” We take these closing words from Section 206(1) of the Code under the heading ‘Accused to be called upon to plead’ ...”

The Court goes on to say at p.4:

“What an accused person says in explanation or mitigation after he has pleaded may qualify his plea in a way that persuades the Court that it cannot be treated as unequivocal.”

Bearing in mind the above passages, it appears that the magistrate did not entertain any doubt that the plea was equivocal looking at the facts and circumstances of the case. Hence it was not necessary for him to enter a plea of not guilty. It is the factors as stated by Court of Appeal that ought to be taken into account in any case brought before the Magistrate and there is a guilty plea and not what is urged by the learned counsel for the appellant in his arguments in support of the appeal.

There was no qualified admission of guilt on the part of the appellant. On a plea of guilty the following passage in DPP v. Jolame Pita 20 F.L.R. 5 in the Grant A.C.J. is worth noting:

“On a plea of guilty to any offence, the question of what is admitted by an accused should be ascertained with certainty; (as) if ... facts are put before a Court or explanation 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.”

For these reasons the appeal against conviction fails

As for sentence the offence is a prevalent offence and the Magistrates are right in exercising their full powers. I find the sentence neither harsh nor excessive or wrong in principle.

The appeal is therefore dismissed.

D. Pathik
Actg. Judge

At Labasa
26 February 2002