Baleitamavua v State [2007] FJHC 77; HAA 107.2007 (29 November 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 107 of 2007

Between:

RUPENI BALEITAMAVUA
Appellant

And:

THE STATE
Respondent

Hearing: 23rd November 2007
Judgment: 29th November 2007

Counsel: Appellant in person
Ms A. Tuiketei for State

JUDGMENT

The Appellant was charged with robbery with violence and unlawful use of motor vehicle. It was alleged that on the 13th of July 2007, at Nasinu he robbed Momin Ali of a taxi meter, car stereo, mobile phone and cash to the total value of $1619.00 and immediately before the robbery used personal violence on Momin Ali. It was also alleged that on the same day, he took the motor vehicle of Momin Ali unlawfully and without a colour of right.

The case was called on the 17th of July 2007, and the Appellant waived his right to counsel. He pleaded guilty to both offences and two additional counts of driving without a driving licence and motor insurance.

The facts were that on the 13th of July 2007 at 4.30pm the complainant, a taxi driver, picked up the Appellant from the Purple Haze nightclub and drove him to Nadera. At the Duvula Road Shopping Centre, he told the Appellant to get off. The Appellant pretended to sleep, then grabbed the complainant’s t-shirt and pulled him out of the taxi. He punched him twice on the left cheek and on the side of his chest. When he fell on the ground, the Appellant dragged him along the road causing injuries to his elbows. The complainant freed himself, then ran towards the Nadera Police Post to report the matter. The Appellant then drove off in the taxi and abandoned it at Reba Circle. He was caught fleeing from the taxi, by the police. He did not have a driving licence, nor a Third Party Policy.

These facts were admitted. The Appellant has 12 previous convictions, two of which are for robbery with violence. All the items were recovered as a result of information given to the police by the Appellant. In mitigation, the Appellant said he was 25 years old, unemployed and single. He said he was a boxer and that as a result of the offence, was unable to participate in a tournament in New Caledonia. He said he committed the offence because he was drunk.

Sentence was delivered on the 8th of August 2007. After reviewing the facts and identifying the tariff, the learned Magistrate picked a starting point of 4 years imprisonment on Count 1 and after adjusting for mitigating and aggravating factors, sentenced the Appellant to 4 years imprisonment. On Count 2, she sentenced him to 6 months imprisonment and on Counts 3 and 4 to 30 days imprisonment. All sentences are to be served concurrently.

The Appellant’s appeal is against sentence. He says that the sentence was harsh, failed to take into account his guilty pleas and failed to consider his cooperation with the police.

At the hearing of this appeal, learned State counsel pointed out, very fairly, that no conviction had been entered formally and that therefore the sentence should be quashed and the matter remitted to the Magistrates’ Court for hearing. Because this issue may determine the appeal, I will deal with it first.

Conviction

Section 206(2) of the Criminal Procedure Code provides that:-

"If the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there shall appear to it sufficient cause to the contrary."

There is conflicting authority about the consequences of a failure to record a conviction. I discussed those authorities in a recent case in the Labasa High Court (Rohit Ashwin Dayal v. Land Transport Authority Traffic Appeal 6 of 2007) a case in which the Magistrate failed to enter a conviction after formally proving a case of driving without seatbelts.

In Siru Lulukalo v. Reg 8 FLR 12, the Court of Appeal considered an appeal from the Supreme Court of the Solomon Islands and held that the failure to enter a conviction after finding the accused guilty was not an incurable defect. In the case of David Kio v. Reg 13 FLR 21, the Court of Appeal (again considering an appeal from the Solomon Islands) held that on a guilty plea, the failure to record a conviction was fatal. Both cases were discussed in Waqavesi Bogitini v. Reg (1983) FLR 134. In that case, the accused had pleaded guilty to robbery with violence but no conviction had been entered. He was sentenced to 4 years imprisonment. Kermode J, referred to a decision of Bankes J in R v. Rabjohns (1913) KB, and held that where there had been a finding of guilt or of an admission of guilt by the accused, a conviction was deemed to have been entered in law. He referred also to a West African Court of Appeal decision in Rex v. Udo Unwwas Ekpo & Others (1947) XIX WACA 153, a decision which was that a finding of guilt in a case of murder was tantamount to the recording of a conviction.

Pain J in Epeli Delai v. State Crim. App. HAA 0022 of 1995 came to a similar conclusion. In that case the appellant had pleaded guilty in the Magistrates’ Court to a charge of act with intent to cause grievous harm. He was sentenced to two years imprisonment. He appealed to the High Court against severity of sentence, but on appeal, also submitted that the sentence was invalid because no formal conviction had been entered. Pain J said, at page 4:

"The first matter to be determined is the meaning of the word "convict" in section 206(2) of the Criminal Procedure Code. It is a word that is capable of, and has received varying interpretations. However the authoritative decision is undoubtedly S v. Recorder of Manchester [1971] AC 481. In this case the House of Lords held that a Magistrates’ Court, following a plea of guilty and before imposing sentence, could permit a defendant to change the plea to not guilty. In those circumstances the Magistrate was not functus officio when the defendant was "convicted" on his plea of guilty."

His Lordship then referred to the speech of Lord Upjohn in R v. Manchester Recorder and quoted the following passage (at page 506):

"The primary meaning of the word "conviction" denotes the judicial determination of a case; it is a judgment which involves two matters, a finding of guilt or the acceptance of a plea of guilty followed by sentence ... But the word "conviction" is also used in a secondary sense, that is to express a verdict of guilty or acceptance of a plea of guilty before the adjudication which is only completed by sentence."

Pain J found that the word "convict" in section 206(2) of the Criminal Procedure Code was used in the secondary or narrow sense. It means the acceptance of a plea of guilty. It is still open to a Magistrate not to enter the word "conviction" and instead to discharge the defendant without conviction. The question is whether the Magistrate has accepted the Appellant’s admission of the truth of the charge.

The same point was considered by Byrne J in In the Matter of an application by Mahen Chand Judicial Review HBJ0016 of 2000. In that case a police officer challenged his summary dismissal from the force. One of his claims was that when he was dealt with in the Magistrates’ Court on a criminal charge, he had been discharged with conditions and that such discharge was not a conviction. Adopting Pain J’s definition of the word "conviction" he held that "It is trite law now that a finding of guilty amounts to a conviction." Although Byrne J did not specifically deal with section 206(2) of the Criminal Procedure Code because his was a judicial review application, the same principle is applicable.

Turning therefore to this appeal, was there a finding of guilt on the record? Clearly there was. The Appellant admitted the summary of facts. This was clearly accepted by the learned Magistrate who then proceeded to hear mitigation and deliver sentence.

I consider therefore that State counsel has conceded this appeal in error. She may not be aware of the authorities on this point. I consider that there was no breach of section 206(2) of the Criminal Procedure Code, and that the record shows that there was indeed a "conviction" in the secondary sense of the word.

Sentence

The sentence imposed is at the bottom end of the tariff. This was a robbery on a taxi driver, a most vulnerable class of victim. It occurred at 4.30am and the Appellant clearly took advantage of the time of night to terrorise this unfortunate taxi driver. The inflicting of actual harm, the dragging along the road and the taking off with his vehicle all called for a deterrent sentence. The Appellant was fortunate to receive a term of 4 years imprisonment. It is obvious from the sentencing remarks that all mitigating factors were taken into account. This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
29th November 2007