Nakato v The State [2005] FJHC 213; HAA0066J.2005S (5 May 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0066 of 2005S

Between:

ISIKELI NAKATO
Appellant

And:

THE STATE
Respondent

Hearing: 3rd August 2005
Judgment: 5th August 2005

Counsel: Appellant in Person
Mr. W. Kuruisaqila for State

JUDGMENT

The Appellant pleaded not guilty in the Suva Magistrates’ Court on the 2^nd of September 2003 on the following charges:

First Count

Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to section 292 of the Penal Code Act 17.

Particulars of Offence

ISIKELI NAKATO, TUPOU VUETAKI, SULIASI RAPUI and others between the 28^th day of September and 29^th day of September, 2003 at Suva in the Central Division unlawfully and without the colour of right but not so as to be guilty of stealing, converted to their own use a private motor vehicle registration number DH 533 the property of VASANT MOHANLAL PATEL s/o Mohanlal Patel.

Second Count

Statement of Offence

LARCENY: Contrary to section 259(1) and 262(2) of the Penal Code Act 17.

Particulars of Offence

ISIKELI NAKATO, TUPOU VUETAKI, SULIASI RAPUI with others, on the 28^th day of September 2003 at Rakiraki in the Western Division, stole a number plate registration number DR 690 valued at $16.90 the property of ANUL NARAYAN s/o Rup Narayan.

Third Count

Statement of Offence

BURGLARY: Contrary to section 299 of the Penal Code Act 17.

Particulars of Offence

ISIKELI NAKATO and others on 28^th day of September 2003 at Suva in the Central Division, broke and entered the dwelling house of VASANT MOHANLAL s/o Mohan Lal Patel with intent to commit a felony namely, Robbery with Violence.

Fourth Count

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(b) of the Penal Code Act 17.

Particulars of Offence

ISIKELI NAKATO and others on the 28^th day of September 2003 at Suva in the Central Division robbed VASANT MOHANLAL PATEL s/o Mohan Lal Patel, one wrist watch valued $130.00, two mobile phone valued at $1100.00, on wallet valued $30.00 and cash $130.00 to the total value $1440.00 and immediately before such robbery threatened to use personal violence to the said VASANT MOHANLAL PATEL s/o Mohan Lal Patel.

Fifth Count

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(b) of the Penal Code Act 17.

Particulars of Offence

ISIKELI NAKATO and others on the 28^th day of September 2003 at Suva in the Central Division robbed DAMYANTI PATEL f/n Prabhu Patel of one ladies wrist watch valued at $70.00 and immediately before such robbery threatened to use personal violence to the said DAMYANTI PATEL f/n Prabhu Bhai.

Sixth Count

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(b) of the Penal Code Act 17.

Particulars of Offence

ISIKELI NAKATO and others on the 28^th day of September 2003 at Suva in the Central Division, robbed ATIR PATEL f/n Vasant Patel, two mobile phones valued at $800.00, one wallet valued at $45.00, one pair of shoes valued $160.00, one walkman valued at $800.00, car keys valued at $100.00 and cash $150.00 to the total value of $2055.00 and immediately before such robbery threatened to use personal violence to the said ATIR PATEL s/o Vasant Patel.

Seventh Count

Statement of Offence

LARCENY: Contrary to section 259(1) and 262(2) of the Penal Code Act 17.

Particulars of Offence

ISIKELI NAKATO and others between 25^th day of September and 27^th day of September 2003 at Suva in the Central Division, stole number plate registration number CG 561 valued at $16.50 the property of JOHN JITENDRA KUMAR f/n Jais Raj.

They were granted bail and there were several adjournments for disclosure, for witnesses who were overseas and for the non-appearance of the Appellant and his two co-accused. The Appellant finally changed his plea on the 16^th of March 2005. He pleaded guilty on all counts. ON the 12^th of April, he was represented by counsel from the Legal Aid Commission.

The facts were that on the 28^th of September 2003, the Appellant was employed as a taxi-driver. On that day, he with the others named in the charges broke into the house of Vasant Mohanlal Patel and stole the items specified in the charge. They used cane knives and a screwdriver to force entry. The occupants were asleep inside the house. They were threatened by the knives held by the robbers, and robbed. They unlawfully used the vehicle registration number DH533, and stole the number plate DR 690. The three counts of robbery arise from threats made to three individuals within the house. After the robbery the robbers drove away in DH 533, which was owned by Vasant Mohanlal Patel. They then charged the number plates and drove to Nadi. The vehicle was finally found on the 29^th of September 2003 at Votualevu in Nadi. the Appellant admitted all the offences under caution.

The Appellant admitted these facts. He had no previous convictions. Counsel mitigated for him, saying that he was a driver, that he had pleaded guilty and that he had spent time in custody. She asked for a non-custodial sentence.

Sentence was delivered on the 19^th of April 2005. The learned Magistrate took into account the Appellant’s youth, good character and his role as a driver in the criminal enterprise. However, he said that he “did agree and took part in the planned attack on innocent victims.” He said that the robbery took place at 3am, when all the victims had been sleeping and that this was a case of home invasion. On each count of robbery with violence he started at 5 years imprisonment, and after adjustments, arrived at 6 years imprisonment. On the counts of larceny he imposed sentences of 9 months imprisonment each. On the count of burglary he imposed a sentence of 2 years imprisonment, and on the count of unlawful use of motor vehicle he imposed 6 months imprisonment. All sentences were to be served concurrently.

In his appeal, the Appellant said that he had only been the driver and should not have been held responsible for the use of cane knives and screwdrivers by the robbers. He further said that the 6 year term was excessive because of his previous good character and youth. He is 25 years old. At the hearing of this appeal, he said that his pleas were equivocal and that he had no idea that the people who had asked him to drive the car, were doing anything wrong. He said he only realised when he reached the house which was to be robbed, and thereafter was forced to co-operate. He submitted further written submissions outlining his family circumstances. These circumstances, which I accept are that his family is suffering hardship and that he is now committed to Church activities.

State counsel opposes the appeal, saying that the pleas were unequivocal, and that the sentence was at the lowest end of the tariff, reflecting the secondary role played by the Appellant.

The pleas

An appeal against conviction after a guilty plea, can only be entertained when the plea is equivocal. In this case, the Appellant initially pleaded not guilty. He changed his plea two years later. He had clearly had an abundance of time to think about it. The charges were read to him and he said he understood. He pleaded guilty to the unlawful use count, the burglary count and the larceny of number plate count. On the 16^th of March he pleaded guilty on the remaining counts when he was represented by counsel. He said “I understand this. Change plea on my own free will. He then said, after taking the pleas, that he admitted committing all the offences on the charge sheet. When the facts were read, the Appellant said he agreed with them. In mitigation counsel said he was the driver. Not only was he represented by competent counsel, but he was also asked on several occasion whether he understood his plea. He said he did. In the circumstances I find that his pleas were unequivocal and that the facts disclosed the offences charged.

Sentence

The tariff for home invasion robberies is 6 to 8 years imprisonment. The learned Magistrate picked a starting point below the tariff. This can only be because of the Appellant’s secondary role in the offending. The 6 year term took into account good character, age, and the guilty pleas. The fact that he was a first offender is of significant weight, but there was no avoiding a custodial sentence in this case.

The Appellant has made compelling representations to me about his earnest attempts to protect his family and to led a decent life. It is not clear why they were not put before the learned Magistrate but his counsel did make strong submissions in mitigation at the sentencing hearing. She referred to all the sentencing guideline cases, and to the personal circumstances of the Appellant. He said that he was the “getaway” driver, that he was looking after his sick mother, that he was remorseful and influenced by his friends. These submissions were clearly considered by the learned Magistrate, and a sentence at the lowest end of the tariff was passed.

For these reasons I do not consider the total sentence to be harsh or excessive. This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
5^th August 2005