Vulawalu v State [2008] FJHC 16; HAA 120.2007 (8 February 2008)

IN THE HIGH COURT OF THE FIJI ISLANDS
APPELLATE JURISDICTION
AT SUVA

Criminal Appeal No: HAA 120 – 121 of 2007

BETWEEN

JOELI VULAWALU
Appellant

AND

THE STATE
Respondent

Appellant in Person
Mr. A. Ravindra-Singh for the Respondent

Final Date of Hearing: 1 February 2008.

RULING

1. Joeli Vulawalu, you were charged in Suva Magistrates Court Criminal Case No: 984/07, with another on one count of Robbery with Violence contrary to section 293(1) of the Penal Code and one count of Unlawful Use of Motor Vehicle, contrary to section 292 of the Penal Code Cap 17. In Suva Magistrates’ Court Criminal Case No: 752/07 you were also charged with another with one count of Robbery with Violence, contrary to section 293(1) of the Penal Code Cap 17.
   
2. These two cases were consolidated and heard in the magistrates’ court on 3 September 2007. The trial of both cases had started and witnesses were called. A trial-within-trial was held to determine the admissibility of your cautioned interview statements and when it was concluded, your caution interview statement was admitted. At that point you change your plea to guilty. You were convicted and were sentenced to 6 years imprisonment in Criminal case No: 984/07 and 4 years imprisonment in Criminal Case No: 752/07. The learned magistrate ordered that the sentence be served consecutively. You total sentence is 10 years imprisonment.
   
3. You have submitted appeal grounds against your conviction and sentence. The appeal grounds were scattered in three letters you submitted to the court, one dated 31 January 2008, and two undated. In these three letters the following would be a fair summary of your complain against your conviction:
   
   1. the learned Magistrate was unfair in not giving you an opportunity to seek legal counsel before the trial was held;
      
   2. the learned Magistrate erred in law in admitting the cautioned interview statement
      
4. The appellant submits that the consecutive sentence of 10 years was harsh and excessive.
   

Determination of Appeal

5. Both grounds of appeal above have no merit and are dismissed for the following reasons. Firstly, the court record shows that when the appellant appeared in court for Criminal case No: 752/07 on 27 April 2007, he pleaded not guilty. The charge was read, explained to him and he understood it. He waived his right to counsel and elected magistrate court trial. He was remanded in custody because of bench warrant in another case. On 11 May 2007, the appellant was in court again and this time advised the court that he wants Mr. Naivalu to represent him. On 1 June 2007, the appellant was in court again and this time the charges were read, explained and he understood it. He pleaded not guilty. There were two other call dates in which the appellant did not attend and bench warrant was issued for his arrest.
   
6. On 1 August 2007, the appellant was present in court on bench warrant. He was told by the learned magistrate that a trial date will have to fixed. The appellant asked for bail submitting that he needed bail to prepare for his defence. Bail was granted for that specific reason and the trail date was fixed for 3 September 2007.
   
7. On 3 September the trial started with a trial-within-trial to determine the admissibility of the caution interview statement of the appellant. This was carefully explained to the appellant and he was given opportunity to cross-examine prosecution witnesses and call his own witnesses. He did not avail this opportunity. The caution interview statement was admitted. Following that the appellant change his plea to guilty.
   
8. At that point he told the court that his part was that he waited at the car that the robbers used to come to the place of the robbery and drive away in after the robbery. It was explained to him that he was equally guilty as those who went into the house and robbed the victims.
   
9. In outlining the above, I wish to highlight that there was no unfairness in the trial. The appellant was given more than ample time to engage legal counsel of his choice. He started by advising the court that he waived his right to counsel. This was followed by his wish to have Mr. Naivalu as his legal counsel. Yet, he did absolutely nothing about the latter.
   
10. On more than one occasion the court explained to the appellant the nature of the charge and he understood it and pleaded not guilty. He was bailed a second time, after absconding bail on the first occasion to allow him to prepare for his defence before the trial started. When the trial started, he complained that his caution interview was forced out of him following assault by the police. A trial within-trial was held. He did not call any witness of his own. The appellant’s caution interview statement was admitted. At that point he pleaded guilty.
    
11. The appellant was of the view that because his part in the criminal enterprise entered into by him and others, to be the spotter and driver, he was not liable for the robbery with violence because he did not actually take part in it. The trial Magistrate explained to him that in law he was as much as responsible as the others who actually entered the premises to be robbed and stole items.
    
12. In the light of the above, I find no unfairness or error in the trial magistrates conduct of the trial. The appeal against conviction has no merit and is dismissed.
    
13. The appeal against sentence was on the basis that it was harsh and excessive. I find the trial Magistrate’s sentence in each of the cases principled and correct: see Sakiusa Basa v The State [2006] FJCA 23 and Tomasi Vosalevu v The State, FCA Crim App Case No: AAU 02 of 2005. On the totality of the sentence and given the role played by the appellant, I would hold that 7 years would be fairer on the facts of the cases here.
    
14. I therefore find that the appellant should be imprisoned for 7 years in total and not 10 years.
    
15. I make the following Orders:
    
    1. The appeal against conviction has no merit and is dismissed;
       
    2. The appeal again sentence succeeds, the sentence is varied from a total of 10 years imprisonment to 7 years imprisonment effective from 7 September 2007.
       

Isikeli Mataitoga
JUDGE

At Suva
8 February 2008.