Anismai v The State [2004] FJHC 110; HAA009J.2004S (18 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA009-014 OF 2004S

Between:

MAKARIO ANISIMAI
Appellant

And:

THE STATE
Respondent

Hearing: 16th June 2004
Judgment: 18th June 2004

Counsel: Appellant in Person
Mr. B. Solanki for State

JUDGMENT

The Appellant appeals against conviction and sentence in respect of six cases in the Suva Magistrates’ Court. His appeal is in respect of all the cases, and against his total sentence. As such, this judgment disposes of all his appeals.

The Appellant was charged with robbery with violence, burglary, larceny, trespass and escaping from lawful custody. The Appellant’s grounds of appeal are that his pleas were equivocal because he was not represented by counsel, that the convictions should be quashed because of the delay from the commission of the offences, and sentence and that the total sentence of 3 years imprisonment was harsh and excessive. Further, at the hearing of these appeals, the Appellant said that the learned Magistrate had induced him to plead guilty by promising him suspended sentences.

In Case No. 1873 of 2001, the Appellant was charged with robbing Arieta Tora of $800 cash using violence, on the 7th of September 2000. The charge was laid in June 2001. The Appellant was represented by Mr. Vere. He pleaded not guilty. Bail was refused. However there is a note on the court record to saying that bail was granted in Case No. 2542 of 1999 (Burglary and Larceny). According to that record, he was granted bail on the 12th of July 2001. However he failed to attend court thereafter, and he was remanded on the 31st of October 2001, only to be bailed again on the 13th of November. Mr. Vere continued to represent the Appellant until the 24th of January 2002 when Mr. Vere and Mr. Raza appeared for him. However on the 29th of January 2002 no counsel appeared for him and a hearing date for the 26th of March 2002 was vacated. On that date however, Mr. Fa appeared as counsel. On the 6th of August Mr. Fa said the Appellant had failed to give him instructions and asked for leave to withdraw. Leave was granted. The Appellant was not present and a bench warrant was issued. On the 15th of August, Mr. Fa appeared again and apologised for the Appellant’s failure to appear. Bail was extended. However he again failed to appear on the 5th of November 2002 and another bench warrant was issued. There were other mention dates fixed, but the Appellant failed to appear. On occasion Mr. Fa or Ms Saumatua (or both) appeared. On the 14th of August 2003, Ms Saumatua (for Mr. Fa) withdrew as counsel in the presence of the Appellant and the matter was adjourned to the 25th of August 2003 for mention. On that date, the charges were read again to the Appellant and he pleaded guilty. The facts were read to him. They were that on the 7th of September 2000, the Appellant went to the office of Clay Engineering at Gladstone Road and robbed Arieta Tora by using violence on her. He used a coffee mug and paper punch and stole $800.

The Appellant admitted the facts and 37 previous convictions for offences dating back to 1986 for offences of robbery/burglary and larceny. He agreed to be sentenced on all his files together.

In Case No. 2542 of 1999, the record shows a similar history of non-appearances by Appellant or his counsel. Ms Saumatua withdrew on the 15th of August and the Appellant pleaded guilty on the 25th of August 2003 to a count of burglary and larceny. The facts were that on the 23rd of October 1999, the Appellant entered the house of Selai Nawai in Nasinu and stole items worth $1695. On discovery the Appellant’s house was searched and all items were recovered. These facts were admitted by the Appellant.

In Case No. 2527 of 2002 the Appellant was charged with criminal trespass. It was alleged that on the 7th of November 2002, he entered the compound of Rudra Singh without lawful excuse. He was granted bail on the 8th of November 2002 but the court was told that there was a bench warrant pending against him in other matters. The Appellant then appeared in court intermittently, on one occasion escaping from police custody at Government Buildings. On the 14th of August Ms Saumatua withdrew as counsel, and the Appellant changed his plea on the 25th of August.

In Case No. 1872/01 the Appellant was alleged to have stolen the handbag of Kelera Liku on the 26th of June 2001. The handbag contained a wallet and $17.20 cash. The Appellant appeared intermittently and Ms Saumatua withdrew on the 14th of August. The Appellant changed his plea on the 25th of August. The facts were that on the 26th of June 2001, the police caught the Appellant with the handbag and cash. The complainant identified the items as belonging to her.

In Case No. 1871, the Appellant was charged with stealing $750 from the office of Media Marketing at Gorrie Street. The history of the case is similar to that of the other court files. Mr. Fa withdrew as counsel on the 14th of August 2003 and the Appellant changed his plea on the 25th of August. The facts were that on the 15th of December 2002 at 3.30pm the Appellant visited the office of Media Marketing and stole $750 in cash from the handbag of one Lisa Marie Underhill. The Appellant admitted these facts.

In Case No. 826 of 2003 the Appellant was alleged to have escaped from the lawful custody of Special Constable Tanasio. The charge was laid on the 8th of April 2003, and all the Appellant’s files, formerly handled by 4 different Magistrates were placed before Mr. Sauvakacolo. On the 2nd of July, a Mr. Bale appeared on behalf of Mr. Fa for the Appellant. The Appellant was not in court. It appears that no production order had been served for his appearance. Mr. Bale told the court that the accused had another case, that a Mr. Nathan had been instructed by the Appellant and that Mr. Fa wanted to know if he was still retained as counsel. On the 14th of August, again in the absence of the Appellant, Mr. Fa withdrew. The Appellant pleaded guilty. The facts were that when the Appellant had been escorted to the cell block on the 6th of February 2003, he had escaped. A search party located him and he was charged.

In mitigation in respect of all files the Appellant said that he had decided to plead guilty on all files and asked for forgiveness for the delay. He said he had two children, that he had been in remand for 7 months, that he needed to make payments on his property to the NLTB, that he was running a small business at home, that he would not re-offend and that he should be given a second chance.

In his sentencing remarks, the learned Magistrate said that the 6 files had been in the court system for 5 years. He said that the Appellant had saved the court’s time, that he had expressed remorse, that he had a young and dependent family and that he had financial obligations. However the seriousness of the offences called for immediate custodial sentences. He sentenced the Appellant to 3 years imprisonment on File 2542/99, 2 years imprisonment on File 1871/01, 2 years imprisonment on File 1872/01, 6 months imprisonment on File 2527/02, 1 year imprisonment on File 826/03 and 3 years imprisonment on File 1873/01. All sentences were to be served concurrently.

Pleas

The record shows that the Appellant pleaded guilty after a long period of maintaining a not guilty plea. It also shows that the charges were explained to the Appellant, and that he agreed to the facts. Further the facts on each file disclose the offences charged and there is no suggestion of any ambiguity in the pleas.

However the Appellant sought leave to file the affidavit of Mr. Tevita Fa in order to prove that he was prejudiced by the circumstances in which Mr. Fa withdrew as counsel. I gave him leave to adduce the further evidence. After some delay, Mr. Fa’s affidavit was filed on the 7th of June 2004. It states that he was briefed as counsel in 2002 by the Appellant. He said that he appeared on one occasion before Mr. Sauvakacolo who told him he would deal with all the Appellant’s files on guilty pleas. Mr. Fa informed him that his instructions were to defend all matters. A few weeks later he appeared before Ms Laveti on another of the files when Mr. Singh said he was appearing as the Appellant’s counsel. Mr. Fa then says:

“7. I looked across to Mr. Anisimai who indicated to me that Mr. Singh was his solicitor and not me.

8. I met Mr. Anisimai outside the court after that when he again confirmed that Mr. Singh was his solicitor.

9. I was very disappointed because I did not know why I was being replaced and because Mr. Anisimai had not explained to me why I was being replaced.”

Mr. Fa then did not appear any further as counsel. In the meantime, the Appellant had made a complaint against Mr. Fa to the Law Society.

I do not see how this affidavit assists the Appellant. The contents of it are in fact disputed by the Appellant. It does show that there was some misunderstanding between Mr. Fa and the Appellant, and that the situation was confused by the fact that there were multiple files before several magistrates involving, it appears, several counsel. However the real question in respect of this ground of appeal is whether the Appellant, despite lack of representation, entered unequivocal pleas of guilty. The records show no signs of equivocal pleas. Mr. Sauvakacolo may have told Mr. Fa that it would be easier to deal with all files together on guilty pleas, but this conversation is not dated and appears to have taken place long before the change of pleas. Further it is not clear that this exchange took place in the Appellant’s presence. There were certainly many occasions on which the Appellant did not appear although counsel did. The Appellant’s own claim is that the learned Magistrate promised to pass a certain sentence on him if he changed his plea. During submissions the Appellant said firstly that the promise was to pass suspended sentences. Later he said it was to pass concurrent sentences. In the circumstances I cannot accept that he was induced to change his plea.

On the day the Appellant changed his pleas, he had experienced 4 years of the court system. During much of this time he was represented by counsel. I have no doubt that he understood the nature of his pleas, and that they were unequivocal pleas of guilty. Indeed his remarks in mitigation reflect his acceptance of his own culpability, and express remorse. The pleas were unequivocal.

Delay

The Appellant says that the delay from the date of the first charge, on 7th September 2000, to final determination of the charges, on 25th August 2003, constituted an abuse of the process. I accept that a great deal of the delay was caused by the administration of the Magistrates’ Court. With several magistrates handling individual files, there was no collective knowledge of whether the Appellant was on bail or on remand, whether a production order was needed to bring him to court, and whether he was represented by one counsel or by several. In such cases, it is preferable for the files of one accused person to be placed before a single magistrate, whenever possible. The clerks of the court also need to be pro-active about informing the magistrates about the status of the accused’s other cases.

In this case, the Appellant’s non-appearance on many occasions was caused by a judicial lack of knowledge about his remand status. However, there were many occasions where the Appellant himself absented himself in breach of his bail conditions. He was in custody for 7 months prior to sentence. However he absented himself on many occasions when he was on bail causing a great deal of delay himself. Further, his conduct in briefing Mr. Vere, then Mr. Raza, then Mr. Fa (and Ms Saumatua) and possibly Mr. Singh, did nothing to expedite the conduct of his cases. Finally, although the oldest case was 4 years old at the time of sentence, Case No. 826 related to an incident in February 2003. On no occasion was the prosecution unable to proceed. The offences, bar one, are serious and require, in public interest, the sanction of the criminal law. The delay was taken into account for the purpose of sentencing.

For these reasons, I do not consider that there are grounds to suggest an abuse of the process. This ground is dismissed.

Sentence

Each file would ordinarily have led to a consecutive sentence. They were factually distinct and separate. However, the learned Magistrate showed the Appellant great leniency in dealing with all his files together and in ordering concurrent terms. Indeed the offence of escaping from lawful custody is invariably one leading to a consecutive term, in order to act as a deterrence against future offending. In this case, the learned Magistrate showed considerable leniency. Further the sentence for robbery with violence is well below the established tariff.

The sentencing remarks show that the Appellant’s guilty plea, the delay in the case, his remorse and family circumstances were all taken into account. He was not entitled to the leniency normally shown to a first offender.

I consider that the total sentence of 3 years imprisonment reflects the nature of the collective offending and takes into account all mitigating circumstances. It is not wrong in principle. The appeals against sentence are dismissed.

Result

The appeals against conviction and sentence are dismissed.

Nazhat Shameem
JUDGE

At Suva
18th June 2004