Raura v State [2007] FJHC 64; HAA017J.07S (9 March 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 017 of 2007

Between:

SOLOMONI RAURA
Appellant

And:

THE STATE
Respondent

Hearing: 2nd March 2007
Judgment: 9th March 2007

Counsel: Ms S. Vaniqi for Appellant
Mr. P. Bulamainaivalu for State

JUDGMENT

The Appellant is convicted on two counts of robbery with violence and is serving a total of 10 years imprisonment. He appeals against conviction and sentence, on the grounds that his plea was equivocal, and his sentence harsh and excessive. The State concedes the appeal on Count 2 on the ground that there were no facts outlined which constituted the offence charged.

The charges were as follows:

First Count

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(a) of the Penal Code.

Particulars of Offence

SOLOMONI RAURA and others, on the 11th day of January 2006 at Suva in the Central Division, armed with pinch bars and a cane knife, robbed ROSALIA MALADROKA of $160 cash, AUS$70.00, US$120.00, 6 remote controls $480.00, 1 Samsung Mobile phone $300.00, 2 ladies wrist watches $111.00, 1 gents watch $200.00, assorted jewellery $5,000.00, to the total value of $6441.00 the property of the said ROSALIA MALADROKA.

Second Count

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(a) of the Penal Code.

Particulars of Offence

SOLOMONI RAURA and others, on the 11th day of January, 2006 at Suva in the Central Division, armed with pinch bars and a cane knife, robbed ALISI VAKACEGUNIKALOU of a white purse $20.00, a wrist watch $35.00, to the total value of $55.00.

The Appellant initially pleaded not guilty on the 24th of February 2006. He was granted bail. On the 18th of November 2006 the 4th Accused pleaded guilty on three counts of robbery with violence. He was sentenced to a total of 5 years imprisonment.

The Appellant pleaded guilty on both counts on the 19th of October 2006. The summary of facts was read out. The facts were that on the 11th of January 2006, one Rosalia Maladroka and her husband were asleep at home when they heard a bang on their door. It was 2.30am. Four men armed with a knife and a pinch bar entered the house and demanded money and jewellery. They stole a number of items to the total value of $6441. They all ran away and left in a private car. Later in an identification parade, the 1st Accused (Tevita Kapaiwai) was identified. The Appellant was interviewed under caution and he admitted robbing the complainant on the 11th of January 2006 and robbing them of the items alleged. The summary of facts in relation to Count 2 are silent on any involvement by the Appellant.

In mitigation the Appellant said he was 30 years old, married with one child, employed by Fair Deal Construction and a sole breadwinner. He had 20 previous convictions.

Sentence was imposed on the 1st of December 2006. The learned Magistrate found that there was no summary of facts in relation of the Appellant’s involvement on Count 2, but sentenced him to 5 years imprisonment on each count to be served concurrently.

The State agrees that the conviction on Count 2 cannot stand, but he is now likely to get yet another concurrent sentence if there is a rehearing. I do not see how justice will be served by an order for rehearing and I decline to so order. The conviction and sentence on Count 2 are quashed.

Counsel for the Appellant submits that the conviction on Count 1 should not stand either because of a failure to provide the Appellant with legal representation, and because a right to counsel was not explained to him before he changed his plea. Relying on Duve v. State [2002] HAA 0028 of 2002, counsel submits that there was a similar change of plea without counsel. The test is whether the accused might have benefitted from legal advice before the plea and whether he/she was prejudiced by lack of representation.

State counsel submits that the plea was unequivocal, the Appellant admitted the facts and the facts disclosed the offence.

The Fiji Court of Appeal in Kumar v. The State [2006] AAU0048.2006, said that it was the duty of the courts to always be vigilant that a plea of guilty by an unrepresented accused is only accepted if it is a "clear complete and unequivocal admission of the offence charged."

In this case, the Appellant pleaded guilty, not on first call, but months after he was granted bail on the 24th of February 2006. He was originally represented by Mr. Naco, but was unrepresented for several mentions thereafter.

On the 19th of October 2006, the record shows that the Appellant himself indicated a change of plea. The charge was then read and explained to him and he said he understood. He admitted the summary of facts on Count 1, which discloses the offence as well as his admissions to the police. He expressed remorse on mitigation.

In the circumstances I do not consider that he was prejudiced by lack of representation or that his plea was equivocal. Appeal against conviction is dismissed.

The 5 year term imposed on him was, if anything, lenient. This was a home invasion. He invaded with a group of men armed with a knife and a cane knife. The incident must have been harrowing for the home owners. The sentence falls within the tariff and is not wrong in principle.

The appeal against conviction and sentence on Count 1 is dismissed. The appeal against conviction and sentence on Count 2 is allowed and they are quashed. No re-hearing is ordered.

Nazhat Shameem
JUDGE

At Suva
9th March 2007