Nakeli v The State [2005] FJHC 320; HAA0115.2005L (11 October 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0115 OF 2005L

SOLOMONI NAKELI

v.

THE STATE

Mr. E. Maopa for the Appellant
Mr. S. Qica for the State

Date of Hearing: 11 October 2005
Date of Judgment: 11 October 2005

JUDGMENT ON APPEAL

This is an appeal against conviction and sentence by the appellant.

The appellant was convicted and sentenced to imprisonment for a term of 3 years by the Learned Magistrate at Nadi on the 22^nd April 2005.

Statement of Offence

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

Particulars of Offence

SOLOMONI NAKELI on the 17^th day of September, 2004, at Nadi in the Western Division robbed ULAMILA SELA of a mobile phone valued $285.00 and immediately before the time of such robbery, did use personal violence to the said ULAMILA SELA.

The appellant when brought before the Court on the 22^nd April 2005 immediately entered a plea of guilty.

The facts as acknowledged and presented to the Learned Magistrate are that on the 17^th September 2004 at 1800 hours one Solomoni Nakeli, 18 years, unemployed, assaulted and robbed one Ulamila Sela, 23 years old, female, bank teller of Navakai, Nadi.

Ulamila Sela was returning from work at Lautoka and she got off her bus at Queens Road at Namotomoto Village. The appellant was there. He followed her. When she passed the Sports Club, he ran and confronted her, punched her on the nose and grabbed her handbag, then grabbed her mobile phone which was hanging around her neck and upon pulling, broke the cord and the phone.

The appellant then sold the phone to a 15 year old student for $30.00.

The appellant when interviewed by the police admitted the offence. He admitted the stealing, assaulting the victim and admitted later selling the mobile phone.

The appellant when he came before the Learned Magistrate, he was unrepresented. The court record shows:

“Court: I see that he is not represented.

Court to Accused: Do you need legal aid or lawyer?

Accused: No.

Court: I can adjourn case to allow you to see counsel or legal aid.

Accused: No.

Court: In that case proceed.”

The record then shows that the charge was read, explained and understood that the accused elected a Magistrates Court trial and entered a plea of guilty. Following which, the record shows:

“Court to Accused: Are you pleading guilty on your own free will or was there any pressure from anyone including from police.

Accused: I plead guilty on my own free will.

Court to Accused: Was there any persuasion on you from anyone to plead guilty?

Accused: No persuasion. I do so on my own free will.

Court: I accept his plea of guilty as being unequivocal. He admits that he is pleading guilty on his own free will and without any pressure from anyone or persuasion of any sort from anyone. He fully understood what he was doing.”

Later the record indicates:

“Court: Do you admit all facts or some of it?

Accused: All. It is all true and I am sorry what I did.

Court: Are you sure that you are admitting it on own free will?

Accused: Yes.

Court: I have ensured that he is not disadvantaged by lack of legal representation.

In any event, I accept that his plea of guilt and his admission of facts are unequivocal.”

Counsel for the Appellant submits provisions of section 28 (1) (d) of the Constitution of the Fiji Islands places an obligation and the Court to see that persons such as the accused, the appellant, has legal representation. That section however says:

“Every person charged with an offence has the right to defend himself or herself in person or to be represented at his or her own expense by legal practitioner of his or her choice or the interests of justice are required to be given the services of a legal practitioner under the scheme for legal aid.”

Clearly the section gives a right but does not cast an obligation for everybody to be legally represented. Counsel for the Appellant has referred the Court to authorities which detail the caution and care must be exercised by the Learned Magistrate in circumstances where an accused is unrepresented. It is highlighted in Kuruka Bogiwalu & Another v The State – FCA AAU 0006 of 1996 and again in Michael Iro v Reginam – 12 FLR 104.

Before this Court is the record of the Learned Magistrate and this Court is obliged to accept that record. That record clearly indicates that the Learned Magistrate exercised appropriate caution and care in accordance with the authorities that have been submitted.

I am therefore of the opinion that the appeal as to conviction must fail for the reasons stated.

With respect to the sentence imposed, the Learned Magistrate imposed 3 years imprisonment. I have been referred to the well known authority for robbery with violence, Raymond Sikeli Singh and 3 Others v The State, Fiji Court of Appeal AAU0008 of 2000S as to the need to take into account the factors such as remorse, age, circumstances of the defendant and/or his family and to consider the deterrence and retribution not the only factors to be considered being sentences are imposed and of course the need to consider rehabilitation.

The Fiji Court of Appeal however in Raymond Sikeli Singh went on to consider the appropriate range of sentences for the offence of robbery with violence and in doing so, considered sentencing principles from New Zealand and other places and the Court then said:

“The starting point for serious armed robbery of commercial premises start at 6 or more years whether there is a greater risk of harm or actual violence is used, the starting point was said to be 8 years or more. The court noted that in the case of very serious armed robbery, the starting point of about 10 years will be appropriate.”

Counsel for the State submits to the Court the tariff range for this robbery with violence is 4 to 7 years.

It is submitted by counsel for the Appellant the inappropriate course to take with this accused because of the significant mitigating factors, in particular his age, his first offence and prospects of rehabilitation, the fact that he has been undergoing counselling and his desired to join his church in a significant capacity justifies a suspended sentence.

The authorities however and the expressions of the former Chief Justice are that suspended sentences should be sparingly used.

I accept the submission on behalf of the State that the tariff range is 4 to 7 years and I accept therefore a starting point of 4 years. There was obviously a very early plea of guilty and significant co-operation with the police which necessitates the appellant being given the maximum discount.

It is also clear from the record that the appellant knew the victim and planned to do what he did. It is recorded in the record “I knew she was a bank teller, she had money and so I wanted it”. That in itself is a significant aggravation.

Whilst it may be that the sentence imposed by the Learned Magistrate is at the top of the range, taking account of the aggravation and mitigation, I am not satisfied that it is wrong in principle or manifestly excessive and accordingly, the appeal as to conviction and sentence is dismissed.

JOHN CONNORS
JUDGE

At Lautoka
11 October 2005