Bakosokoso v The State [2004] FJHC 82; HAA0021.2004 (1 April 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0021 OF 2004

BETWEEN:

VILIAME RATOA BAKOSOKOSO
Appellant

AND:

STATE
Respondent

Counsels:

Appellant:- In Person
..............for the State

Hearing:
Judgment:

JUDGMENT

This is an appeal against sentence. The appellant was convicted on one count of larceny from the person and sentenced on the 13th of November 2003. He received 12 months imprisonment.

Particulars of Offence

The victim and her friend were returning home by bus. They got off at their home stop in Veisari, to walk home. The appellant came up from behind the victim, grabbed her handbag and made off with it. Identification of the appellant was corroborated by the prosecution witness. She knew the appellant prior to the night of this incident.

The Grounds of Appeal

In a typewritten letter the appellant commences by saying he wishes to appeal against sentence. However, in the body of his petition one of his grounds of appeal is that the learned trial magistrate breached his constitutional rights to representation. As it appeared to me that went more towards conviction then sentence, I allowed the appeal to extend to both. The State was not prejudiced by this. They had diligently supplied the Court with written submissions before commencement of the appeal. The submissions covered both conviction and sentence.

In the grounds of appeal the appellant pleaded:

- Breach of constitutional rights.

- Failure to consider a prompt guilty plea.

- A harsh and excessive sentence.

- An ignorance of criminal process and procedure.

- A mitigation tantamount to saying that the delay in making the complaint was not properly weighed by the learned magistrate in his decision.

At appeal the appellant enhanced his grounds in this way.

The State provided a most helpful written submission in advance of appeal. They acknowledged the appeal would be extended to conviction and sentence. The State analysed the decision of Suren Singh & Others v The State [2000] Criminal Appeal 035/00 a decision of my sister Justice Shameem on the issue of Section 28(1) (d) of the Constitution.

As for sentence they remind me of two Tariff Decisions the State v Poniasi Saulekaleka [2001] Criminal Appeal 050 and Lote Raikabula v The State [1990] Criminal Appeal No. 59. These decisions indicate a sentence of between 10 to 12 months imprisonment in similar circumstances is not excessive.

The Conviction

The appellant says he was denied his rights under Section 28(1) (d) of the Constitution. The purpose of that section is to secure a fair trial including the right of the accused to choose to be legally represented. A purposive reading of that provision simply means that an accused must be given that advice including the right to apply for legal aid if he so desires.

A failure to advise an accused of the right or failure to draw his attention to the right at the correct time does not automatically lead to a successful appeal. A breach simply opens the door to further inquiry as to whether any failure to ensure that right is given and understood did in fact prejudice the appellant thereby making the proceeding unfair.

I have reviewed the record and note that at the first appearance on the 3rd of July 2003 a bench warrant was issued for the absent accused who appeared late. He subsequently appeared and he was remanded to the 23rd of August 2003. When he appeared on that day the charges were read and explained to the accused who acknowledged that he understood them and entered a plea of not guilty. However, the court notes this was only a first phase and then makes a remand for mention on the 16th of September 2003 for a second phase. The learned magistrate then bailed the accused.

At the next appearance on the 16th of September 2003 the accused was remanded to the 12th of November 2003 for hearing. He was told of the witnesses, reminded of the need to have witnesses for himself and also told of his constitutional rights to counsel representation.

The matter was remanded for hearing to the 12th of November 2003.

Accordingly two months before the substantive hearing I find that the court had informed the appellant of his section 28 rights to be represented by counsel.

There is no indication in the record that the appellant at any time asked or insisted on counsel but neither is there a clear record of his waiver of that right. I am however prepared to infer that he was purposefully advised of his right to choose to be legally represented and simply did nothing about that.

I am fortified in that view because during the course of the investigation at the time of his caution interview and charge the usual full caution was administered to him including advice of his right to counsel. The ingredients of the offence clearly stated.

In addition I find that he adequately conducted his defence. The allegation was simple. His defence was lack of identity and I did not do it. He was able to cross examine on the essential issue then gave evidence on his own behalf. In short he was able to effectively and properly put his defence during the trial. The proceedings conducted were fair and did not in any way prejudice the appellant.

I find that there was no breach of his Section 28(1) (d) rights as those rights were adequately given to him at a sufficiently proximate time to the substantive hearing. There was no prejudice by delay in advise of those rights. At trial he was able to effectively and properly put his defence. In this regard I adopt the reasoning of my learned sister Justice Shameem in Suren Singh (supra).

Appeal Against Sentence

The learned magistrate gave a comprehensive decision that properly weighed the aggravating and mitigating features of this offending. The decision was not wrong in principle or law.

The tariff for these offences in the first offenders indicates imprisonment between 12 to 18 months (refer State v Poniasi Saulekaleka and Lote Raikabula v the State (supra)).

.......there was little to mitigate this selfish and serious offending involving as it did an attack on a woman at night. The emotional harm and fear experienced by this victim will be with her for a long time. The sentence of imprisonment was deserved to not excessive.

Conclusion

Appeal dismissed.

Gerard Winter
JUDGE

At Suva
April, 2004