Kedrayate v State [2010] FJHC 44; HAA057.2009 (15 February 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

HIGH COURT CRIMINAL APPEAL NO: HAA 057 of 2009
CRIMINAL CASE NO: 1397 of 2009

BETWEEN:

KEMUELI KEDRAYATE
APPELLANT

AND:

STATE
RESPONDENT

Counsel: Appellant - In person
Respondent - Mr K. Waqavonovono

Date of Hearing: 4th February, 2010.
Date of Judgment: 15th February, 2010.

JUDGMENT OF THE COURT

Background

(1) Appellant was charged in Suva Magistrates Court for Criminal Trespass contrary to Section 197(2) of the Penal Code. Appellant pleaded guilty to the charge and was convicted on his own plea and was sentenced to 12 months imprisonment.

(2) Appellant appealed against the Sentence on the ground that it is harsh and excessive.

(3) When the appeal matter was called before Hon. Justice Goundar on 4th December 2009 on considering the facts Appellant was granted leave to appeal against conviction as well on the basis that the facts admitted by the Appellant in the Magistrates Court do not appear to support the charge of Criminal trespass.

Facts

(4) When Special Constable (PW2) was walking along the Macfarlane Road at 0100hrs on 29/10/09 he has seen the accused in front of 90, Macfarlane Road where a Fijian female lives. Having seen the Constable Appellant has run away to the neighbours compound. When the Constable (PW2) questioned the accused he had said that he went to see his girlfriend. Then accused was arrested for the offence of Criminal Trespass.

(5) Accused appellant appearing in person submitted that the sentence is harsh and excessive. Further he submitted that there was no trespass against the complainants’ yard and that he was standing on a compound adjacent or close to the compound in question.

He did not make any legal submissions on the matter.

(6) It was submitted on behalf of the State (Respondent) that they agree that the summary of facts tendered and admitted by the Appellant does not support the charge of Criminal Trespass in this case. That is to say "without lawful excuse" element was not mentioned in the summary of facts. On this point citing the Western Australian case Wilson v McDonald (2009) WASCA 39(12/2/2009) and DPP v Wille [1999] NSWSC 661; (1999) 47 NSWLR 255 it is contended on behalf of the Respondent that Appellant understood the charge and that the plea was unequivocal.

(7) On the appeal on sentence State (Respondent) agreed that the Learned Magistrate erred in law when she did not follow the principles applied in Nakelekelevesi v State (2008) FJCA 11; AAU0061. 2007 on sentencing and not taking into account the tariff. Further it is submitted that the Learned Magistrate failed to give consideration to any of the mitigating factors.

Consideration of the Grounds of Appeal

(8) It is well settled Law that the plea of guilt has to be unequivocal. The Appellant directly did not make submissions on this ground as he was unrepresented. It is nothing but fair to consider the summary of facts filed in the case combined with the plea of guilty and mitigation.

(9) In the summary of facts filed of record it is mentioned that the Appellant immediately before arrest has told the Constable that he came to see his girlfriend. After pleading guilty to the charge on the mitigation again the Appellant said that he went to see his girlfriend. This is what he said in mitigation "....I went to see my girlfriend and not to commit felony. My girlfriend’s relatives do not like me and do not want me to see her. We are deeply in love...."

(10) This clearly shows that although he pleaded guilty his plea is not unequivocal.

In Peni Lakaba v State (2002) FJHC 98 HAA034j. 2001B(26 Feb 2002) case referring to Ram Sami Naidu v R Cr Appeal 34 of 1984 at page 2 (unreported) said:

"Each case must be dealt with on its own particular facts and there must be an intentional and unequivocal admission of guilty by an accused adequately informed of the substance of the charge or complaint"

went on to say

"What an accused person says in explanation or mitigation after he has pleaded may qualify his plea in a way that persuades the Court that it cannot be treated as unequivocal".

(11) In the instant case after pleading guilty as an unrepresented accused in mitigation he qualified his plea. Therefore it cannot be considered as unequivocal. Even at the time of arrest he as mentioned the same thing to the Constable according to the summary of facts on record.

Therefore Learned Magistrate should have recorded a plea of not guilty instead of the plea of guilty. Hence the conviction is bad in Law and cannot stand.

(12) Now it is my duty to see whether this case should be sent back to the Magistrate Court for retrial.

At the hearing on the appeal against sentence the State too conceded that the sentence is excessive. That the Learned Magistrate has not given due consideration to mitigatory factors and tariff.

(13) In Archbold Criminal Pleading 2010 at Page 1154

"The decision whether to order a retrial requires an exercise of Judgment, involving consideration of the public interest and the legitimate interests of the defendant. The former was generally served by the prosecution of those reasonably suspected on available evidence of serious crime, if such prosecution could be conducted without unfairness to, or oppression of, the defendant. The legitimate interests of the defendant would call for consideration of the time which has passed since the alleged offence and any penalty already paid".

(14) State made submissions conceding that the sentence is too harsh as the mitigatory circumstances and tariff was not taken into consideration. Court will consider the maximum sentence that could be imposed for this offence in the circumstances of this case.

The accused has already served more than a month in prison and the court will take that into consideration. When considering the sentence served, in the interest of justice I find that a retrial should not be ordered.

Result

(15) In the above premise conviction and sentence set aside.

Priyantha Fernando
PUISNE JUDGE

15/02/2010