Qaraniqio v State [2008] FJHC 344; HAA047.2008 (12 December 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 047 of 2008

Between:

EPELI QARANIQIO
Appellant

And:

THE STATE
Respondent

Hearing: 21st November 2008
Judgment: 12th December 2008

Counsel: Appellant in person
Ms A. Tuiketei for State

JUDGMENT

[1] The Appellant, on the 11th of March 2008 was charged with robbery with violence. The charge alleged that on the 17th of February 2008 at Nasinu, he robbed Jaysheline Bandana of personal items valued at $5925 and immediately before the robbery, used personal violence to her.

[2] The case was called in the Nasinu Magistrate’s Court and the Appellant pleaded guilty after he waived his right to counsel. The facts were that on the 17th of February 2008 at 1.45am he with others broke into the house of the complainant at Vota Place, Newtown. On that day the complainant was alone at home with her grandmother. Her brother and stepmother were sleeping in another room. She woke up to see three masked men moving around the bedroom. They took a gold chain from the neck of her sleeping grandmother and the other personal items around the house. They then left. There were no injuries, although there were verbal threats of violence.

[3] The Appellant was interviewed under caution. He admitted the offence. He received $60 cash as his share of the robbery. These facts were admitted. In response to the learned Magistrate’s careful questioning he said:

"I admit I was part of the group of boys that broke into the complainant’s house on 17.2.08, verbally threatened them and as a group, stole the properties mentioned in the charge."

[4] He was then convicted. He admitted 10 previous convictions. 3 of these were for robbery with violence. In mitigation he said he was 25 years old, single and unemployed. He was educated up to Form 5 level and farmed until 2001. He attempted to run a small business in 2001 but was then unemployed until 2003 when he went to prison. His parents are divorced and he lived with his mother.

[5] Sentence was delivered on the 18th of March 2008. The learned Magistrate picked a starting point of 5 years imprisonment. He took into account the guilty plea, the lack of physical harm to the victim, the fact that he benefitted only to the tune of $60 and his education. The aggravating factors were the home invasion and the fear caused to the complainants. The fact that the Appellant had previously committed the offence of robbery with violence deprived him of a lenient approach to sentence. He sentenced the Appellant to 6 years imprisonment.

[6] The Appellant in his written and oral submissions said that the conviction should be set aside because he was prejudiced by lack of legal representation, and that the sentence was harsh and excessive. He further said that the learned Magistrate had forced him to plead guilty, promising to send him back to his village and to impose a non-custodial sentence.

[7] The State opposes the appeal saying that in comparable cases, a sentence of 6 years imprisonment had been upheld.

[8] This was a home invasion robbery. The Fiji Court of Appeal has expressed the view (in Sakiusa Basa v. State [2006] AAU0024.05) that in cases of home invasion, the courts should start at a higher starting point, because of the gross invasion of privacy and the vulnerability of the situation that victims find themselves in. In this case the Appellant committed the offence with a group of men, all of whom were masked. The victims included a young girl and an old woman. This was a case in which a sentence of 6 to 8 years imprisonment was justified. The 6 year term imposed reflected the guilty plea and the attempts of the Appellant to empower himself with further education. The sentence is correct in principle.

[9] In relation to conviction, there is no suggestion of a plea bargain on the record. Indeed the presiding Magistrate appears to have taken scrupulous care to explain the right to counsel, to record waiver and to ensure that the Appellant understood the elements of the offence. I see no evidence of any prejudice to the Appellant as a result of lack of representation. In court he complained that the police confession should not have been considered because it had been obtained by the police by force. In response to this submission, I note that the Appellant did not tell the Magistrate this when the caution statements were tendered in court. I also note that the learned Magistrate only relied on the statement to the extent that he accepted that the Appellant received only $60 as his share of the robbery. The interviews which are normally tendered at a sentencing hearing to ensure that an unrepresented accused did not raise a defence in law during police interview. Such a defence could lead to an equivocal plea and the sentencing court’s duty is to ensure that the guilty plea is informed and voluntary. In this case, whether or not it had been tendered, would have made little difference to the resulting sentence. If anything it might have been higher because of the information in it that was favourable to the Appellant.

[10] I see no evidence of an equivocal plea. Indeed the learned magistrate appears to have taken pains to ensure it was unequivocal. The appeal against conviction is dismissed.

Result

[11] This appeal is wholly dismissed.

Nazhat Shameem
JUDGE

At Suva
12th December 2008