Leqainatoba v The State [2004] FJHC 240; HAM0047D.2004S (10 September 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO: HAM0047 OF 2004S

Between:

ANARE LEQAINATOBA
Applicant

And:

THE STATE
Respondent

Hearing: 3rd September 2004
Ruling: 10th September 2004

Counsel: Applicant in Person
Mr. P. Bulamainaivalu for State

JUDGMENT

This is an application for enlargement of time to appeal. Grounds which might justify enlargement of time are the existence of any questions of law which are unusually difficult, and inability to obtain the court record.

The Applicant was charged with 3 counts of robbery with violence. He pleaded guilty on the 5th of February 2004. He agreed to the facts in respect of all the charges. Each offence involved the attack on the victim causing injuries, by a group of men. The Applicant was a first offender and was sentenced to a total sentence of 8 years imprisonment; to be served consecutively to the 4 year term in Court File 2710/03. He was told of his right of appeal within 28 days. He appealed against this sentence on the 10th of June 2004, 2½ months out of time. The reason he gave for his late appeal was that he did not understand his right of appeal.

His grounds of appeal are that he was pressurized by the police to plead guilty, that he was not told of his right to counsel, that his plea was equivocal, and that his sentence was harsh and excessive for a young first offender.

The Applicant’s excuse for his late appeal is unsatisfactory. However I accept that he is a young first offender and is unfamiliar with the court proceedings. Further I consider that he has an arguable appeal which has merit. In particular, although a series of robbery with violence cases cannot be condoned, a total of 12 years imprisonment for an 18 year old first offender does appear to be unduly long. On this ground, leave is granted to enlarge time.

State counsel has made full submissions on the appeal itself. He submitted that the pleas were unequivocal, that he was not prejudiced by lack of legal representation, and that the sentence of 12 years imprisonment is not harsh and excessive.

The court record shows that the Appellant was never told of his right to counsel. However the facts outlined in each case clearly disclosed the offences. Each incident involved an attack on one man by the accused and two others. In the case of each, the sum of around $300 was taken and the complainant received swelling over the eye, abrasions and tenderness. The mitigating factors were that the Appellant was a first offender, employed as a security guard, aged 18 years old and pleaded guilty. There was nothing in the mitigation to suggest an equivocal plea. I do not consider that he was prejudiced by lack of representation, despite the failure of the magistrate to inform him of his right to counsel.

Nor do I consider the pleas to be equivocal. Clearly the Appellant understood the charges and pleaded to them. There is no merit in the appeal against convictions.

However I do consider that a term of 12 years imprisonment to be excessive for an 18 year old first offender. The length of the sentence must give to the Appellant a sense of hopelessness far outweighing the seriousness of the offences. The sentences of 4 years on each count are unexceptionable. Indeed, given the group offending and the injuries sustained by the victims, such a sentence at the lowest end of the tariff is, if anything, lenient. However I consider that the cumulative sentence of 12 years to be excessive under the totality principle. I consider that the sentences on Court Files 2710/03 and 2709/03 should be served concurrently but consecutive to the sentence on Court File 2708/03.

The total of 8 years imprisonment is to be served concurrently with the four year term he is serving at present. Effectively his sentence is reduced to 8 years imprisonment. This appeal succeeds to this effect.

Nazhat Shameem
JUDGE

At Suva
10th September 2004