Waqabaca v State [2010] FJHC 377; HAA014.2010 (3 September 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAA 014 OF 2010

BETWEEN:

IOWANE MURI WAQABACA
APPELLANT

AND:

STATE
RESPONDENT

Counsel: Mr. Sen - for the Appellant
Mr. Qica - for the Respondent

Date of Hearing: 27.08.10, 30.08.10, 31.08.10
Date of Judgment: 03.09.2010

JUDGMENT

1. The appellant preferred an appeal against the order of Learned Magistrate dated 25/01/2010 and submitted following grounds of appeal.

1. That the sentence ordered by the trial court in each case is too harsh and excessive;
   
2. That the trial magistrate had failed to consider the fact all grog plants stolen were recovered with my willing cooperation with the police including the horse;
   
3. That the trial magistrate failed to consider the fact that I had pleaded guilty at the first opportunity;
   
4. That the 6 years ordered by the court translates to 4 ½ years for each count before allowing for a 1/3 reduction for the early plea of guilty which I believe is too harsh;
   
5. That the trial magistrate failed to consider the fact that I am a first offender and did not give weight to the factors said in mitigation;
   
6. That there had been great inconsistencies in sentences for Larceny where when compared one Timoci Levaci vs State the accused Timoci Levaci was charged with four (4) counts of Larceny and pleaded guilty but was sentenced by the Labasa Court to 12 months imprisonment on 9/2/10.
   

2. When the matter was taken up for hearing on the 27th August 2010, Mr. Sen (who is appearing on Pro bono) moved the Court another ground of appeal.

The Learned Magistrate has not entered a conviction, which is fatal error in Law, and he moves that the decision of the Learned Magistrate be quashed. He is referring to Prakash Chand v The State, HAA 5 of 2010 High Court, Labasa dated 13th August 2010.

3. The appellant was originally charged in the Magistrates Court on the following grounds.

Statement of Offence [a]

LARCENY: Contrary to Section 259 and 262 of the Penal Code Act 17.

Particulars of Offence [b]

Iowane Muri Waqabaca on the 10th day of September, 2009 at Navakawau, Taveuni in the Northern Division, stole 35 yaqona plants valued at $300.00 the property of Enesi Yavala.

4. I consider the last ground of appeal should be decided first, because it goes to the root of the original decision of the Learned Magistrate.

5. Now I refer to the proceedings dated 25/01/10 of the Magistrates Court of Taveuni.

25/01/10

Prosecution - Corporal Ravula

Accused – Present

Charge read explained – understand (in Fijian)

Right to counsel – waived.

Plead – plead guilty.

Court - Did anybody force you?

Accused - No.

Facts admitted – 1 previous conviction.

Mitigation - 23 years

Married

Farmer

100 FJD per week

Ask for forgiveness

1. The sentence prescribed under Penal Code is 14 years imprisonment.
   
2. The tariff is 2 years to 5 years imprisonment.
   
3. The Accused has 1 previous conviction in 2009, therefore I start with 5 years of imprisonment.
   
4. For his early plea of guilty I deduct 1 year.
   
5. This is the larceny of a horse and as the accused committed the offence within seven months of the first offence I consider it an aggravating circumstance to reduce the sentence by 1 year to make the sentence 3 years of imprisonment.
   
6. As the Accused has 1 previous conviction I impose the imprisonment to be a custodial sentence.
   

Sgd:

Resident Magistrate

6. The appellant submitted that there is no proper conviction entered by the Learned Magistrate, therefore the sentence without proper conviction is patently wrong.

7. Respondent State Counsel admits that the Learned Magistrate has not entered a conviction in this matter.

8. State further submitted that the Learned Magistrate must have overlooked or honestly made a mistake of actually putting the words "convicted as charged" on record.

9. State submitted Sivaro vs State [ 1998] FJCA 18; AAU003u.97, the appellant had pleaded guilty in the High Court to the offence of robbery with violence and was sentenced to 4 years imprisonment. He appealed his sentence saying that it was harsh and excessive. However before the Fiji court of Appeal dealt with the sentence appeal, at page 6 paragraph 4 of the judgment, it also considered an issue that the court record did not disclose a conviction being entered against the appellant. The Court has this to say;

"Before we deal with the quantum of sentence we wish to refer to the fact that the appeal book does not disclose that a conviction was entered in this case. Section 281 of the Criminal Procedure Code Cap. 9 states –

"If the accused pleads "guilty" the plea shall be recorded and he may be convicted thereon."

The permissive "may" is designed to cater to a situation where the trial judge may not wish to enter a conviction for some reason. Here the imposition of a prison sentence negates any suggestion that it was intended to avoid a conviction. In such circumstances a conviction ought to have been entered. For obvious reasons it is a sound and desirable practice to enter conviction before passing sentence. The failure to do so in this case was a mere irregularity constituting a curable defect. The Appellant is deemed to have been convicted of Robbery in company of others under Section 2931(a) of the Penal Code."

10. Further in the case to Rupeni Baleitamavua v State Criminal Appeal No: HAA 107 of 2007; the appellant had pleaded guilty to robbery with violence and unlawful use of motor vehicle in the Magistrates Court and was sentenced to 4 years imprisonment. He appealed against sentence and stated that sentence was harsh and excessive and his guilty plea was not considered by the court.

During the appeal hearing State counsel raised that no conviction had been entered on record formally and therefore the sentence should be quashed and remitted to the Magistrates court for sentencing. Shameem J who was then a Judge of the High Court considered this issue about convictions not being entered on record from pages 3 – 6 and also referred to case authorities of Siru Lulukalo v Reg 8 FLR 12, Epeli Delai v State Crim App HAA 0022 and R v Recorder of Manchester [1971] AC 481, which supported the proposition that a finding of guilt on record amounts to a conviction.

In this appeal Shameem J was of the view that State counsel had conceded the appeal in error as clearly there was on record evidence to show that the appellant had admitted the summary of facts which was clearly accepted by the learned Magistrate who then proceeded to hear mitigation and deliver sentence. She was of the view 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.

11. Now I consider the law section 221 of the Criminal Procedure Decree states as follows:

"The accused pleads guilty, the plea shall be recorded and the court may proceed to convict the accused person."

12. Section 221 of the Criminal Procedure Decree gives discretion to the trial judge to enter a conviction or not to enter a conviction. It states Court may proceed to convict the accused person as per this section the trial judge has discretion to enter a conviction or not to enter a conviction.

13. Section 15 of the Sentencing and Penalties Decree states as follows:

If a court finds a person guilty of an offence, it may, subject to any specific provision relating to the offence, and subject to the provisions of this Decree –

(a) record a conviction and order that the offender serve a term of imprisonment;

(b) record a conviction and order that the offender serve a term of imprisonment partly in custody and partly in the community;

(c) record a conviction and make a drug treatment order in accordance with regulations made under section 30;

(d) record a conviction and order that the offender serve a term of imprisonment that is wholly or partly suspended;

(e) with or without recording a conviction, make an order for community work to be undertaken in accordance with the Community Work Act 1994 or for a probation under the Probation of Offenders Act (Cap. 22);

(f) with or without recording a conviction, order the offender to pay a fine;

(g) record a conviction and order the release of the offender on the adjournment of the hearing, and subject to the offender complying determined by the court;

(h) record a conviction and order the discharge of the offender;

(i) without recording a conviction, order the release of the offender on the adjournment of the hearing, and subject to the offender complying with certain conditions determined by the court;

(j) without recording a conviction, order the dismissal of the charge; or impose any other sentence or make any other order that is authorized under this Decree or any other Act.

14. The case Prakash Chand vs State (supra) cited by the Counsel for the appellant was decided under the previous Criminal Procedure Code. The relevant sections are reproduced.

"206-(1) The substance of the charge or complaint shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth of the charge.

(2) 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." (emphasis added)

"215. The court having heard both the prosecutor and the accused person and their witnesses and evidence shall either convict the accused and pass sentence upon or make an order against him according to law or shall acquit him or make an order under the provisions of section 44 of the Penal Code." (emphasis added)

15. Comparing both section 221 and 206 is pertinent at this juncture. Section 206 of the Criminal Procedure Code didn't give any discretion to the judge but the Section 221 of the Crime Decrees gives discretion to a trial judge.

16. According to Section 15 (1) (a) of the Sentencing and Penalties Decree "record a conviction and order that the offender serve a term of imprisonment."

17. Considering Section 221 of the Criminal Procedure Decree and Section 15 of the Sentencing and Penalties Decree, I am of the view that if there is a custodial sentence is imposed the judge must enter a conviction. If not it will be a patent error which cannot be cured by a court which deals with the appeal.

18. Considering all above factors, I find that the Learned Magistrate has not entered a conviction, therefore I set aside the sentence and refer the case back to the Magistrate to follow the proper procedures, according to the law.

19. Appeal allowed.

20. 30 days to appeal.

S. Thurairaja
JUDGE

At Labasa
3 September 2010