Raura v The State [2004] FJHC 145; HAA0068J.2004S (27 August 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0068 OF 2004S

Between:

SIMIONE RAURA
Appellant

And:

THE STATE
Respondent

Hearing: 13th August 2004
Judgment: 27th August 2004

Counsel: Appellant in Person
Ms L. Chandra for State

JUDGMENT

The Appellant was convicted 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 two others, on the 6th day of March, 2004 at Samabula in the Central Division, robbed MOHAMMED ALI s/o RAZOOR KHAN of $47.00 cash and immediately before such robbery threatened to use personal violence with a rope on the said MOHAMMED ALI s/o RAZOOR KHAN.

The case was called on the 8th of March 2004 and the charge was read to the Appellant. He was not told of his right to counsel. He pleaded guilty after saying that he understood the charge.

The facts were that on the 6th of March 2004 at 11.30am the complainant was driving along Raiwaqa Market when the Appellant with two others stopped his taxi and boarded the taxi. The Appellant asked the complainant to drop them at Dilo Street in Samabula. At Dilo Street the Appellant tied rope around the complainant’s neck and assaulted him. He stole $47 cash. $8 of this was recovered from him. He was later charged. These facts were admitted by the Appellant, as were 18 previous convictions. Of these, the Appellant has 6 previous convictions for robbery and robbery with violence and a number of convictions for larceny from person and act with intent to cause grievous harm.

In mitigation the Appellant said he was 35 years old and unemployed. He asked for a suspended sentence. The court ordered a psychiatric examination of the Appellant. No reasons were given for this order but the matter was adjourned to the 22nd of March for the report. A memorandum from the St. Giles Hospital was received on the 24th of March. A copy is not on the court record, but it is on the court file. It is dated 22nd March 2004. Its concluding paragraph reads:

“Simione is diagnosed to have dissocial personality disorder. He knew what he was doing at the time of the commission of the alleged crime. He should therefore be held responsible for his actions. He is fit to plead. He is now discharged from the hospital.”

The learned Magistrate delivered sentence on the 26th of March 2004. He said (at p.9):

“The court had observed the demeanour of the accused person when he appeared in this Court on 8/03/04, and assessed that he was remanded into custody, so that a Psychiatrist Report be obtained on his behalf, in order for the Court to pass an appropriate sentence.

He does not seem aggressive, but naïve in his looks. He is a matured person, with the mind of a young boy. He knew what he was doing was wrong, but cannot resist the temptation. According to the Medical Superintendent and Consultant Psychiatrist – St. Giles Hospital, Simione, the accused person is diagnosed to have “dissocial personality disorder.” This must be attributed to the type of lifestyle he was subject to when he was a young man.”

He said that the terms of imprisonment he had served since 1988, did not appear to have benefited him at all and that he needed to learn something from his reckless behaviour. He sentenced him to 6 years imprisonment.

The Appellant appeals against his sentence saying that inadequate weight was put on his plea of guilty, and on the recovery of the stolen money, and that weight was put on his previous convictions. At the hearing of this appeal, he added another ground, that is that the learned Magistrate should not have ordered a psychiatric report without his consent. Further, he submitted that the learned Magistrate erred in putting any weight on the report.

The State opposes this appeal, saying that the sentence is within the tariff for robbery with violence cases, and that in the light of the aggravating features of the case, the appeal should be dismissed. I agree. Although the learned Magistrate did not indicate his starting point, there were a number of aggravating features in this case. One was the attack on a taxi driver. Another was the strangling with the rope. It is probable that the unfortunate victim believed that he was being killed. The third is that the Appellant was part of a group of three. There appear to be no mitigating factors, other than the reference to “dissocial personality disorder” and the early guilty plea.

In the circumstances the 6 year term was not wrong in principle.

I now deal with the psychiatric report. Section 148 of the Criminal Procedure Code provides:

“(1) When in the course of a trial or at any time after a formal charge has been presented or drawn up, the court has reason to believe that the accused may be of unsound mind so as to be incapable of making his defence, it shall inquire into the fact of such unsoundness and may adjourn the case under the provisions of section 202 for the purposes of obtaining a medical report and of making such other enquiries as it shall deem to be necessary.”

Section 148 does not require the court to first obtain the accused’s consent. Indeed, in cases of obstructive or inexplicable behaviour in court, it may not be practicable to obtain such consent. Further, the purpose of the section is to ensure fitness to plead and/or any possible defence of insanity. The purpose of the power is to protect the accused’s rights, not the prosecution’s, and to ensure that the accused has the capacity to fully understand the court proceedings. Such a measure is particularly significant when the accused is not represented.

In the circumstances I do not consider that the Appellant had to first consent to the order. Further the report itself highlighted the accused’s mental state in relation to his terms of imprisonment already served and was not a significant part of the sentence. As for the doctor’s findings that the Appellant was fit to plead and was not suffering from unsoundness of mind at the time of the offending, the Appellant does not dispute this. In the light of his guilty plea, the use of the report was not prejudicial to him. This ground also fails.

One last point. The Appellant was not told of his right to counsel. This is a breach of the Constitutional right to counsel. However a perusal of the court record shows that the proceedings were conducted fairly, the learned Magistrate took great care to ensure that the Appellant was fit to plead and that he agreed to the facts. There was no prejudice to him. Further, he remains unrepresented on appeal and agreed to proceed without counsel.

For these reasons this appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
27th August 2004