Nasigaya v State [2011] FJHC 514; HAA016.2011 (9 September 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 016 OF 2011
CRIMINAL APPEAL NO. HAA 021 OF 2011

BETWEEN:

JOSUA NASIGAYA
First Appellant

JOELI RANITU
Second Appellant

AND:

STATE
Respondent

Appellants in Person
Mr S. Babitu (14 July, 2nd August)
Ms K. Semisi (1st September) for the State

Dates of Hearing : 14th July, 2nd August, 1st September, 2011
Date of Judgment: 9th September 2011

JUDGMENT

[1] On the 21st January 2011 these two appellants were sentenced (but not convicted) in the Magistrates Court at Ba to nine years and one month for an offence of robbery with violence contrary to

Section 293 (1)(b) of the Penal Code, Cap 12. The term was ordered to be served concurrently with sentences presently being served. At the time of sentencing for the robbery, seven other various offences were "taken into account" pursuant to Section 216 of the Criminal Code. Both accused now seek to appeal their convictions and sentences.

Facts

[2] The facts put to each appellant below were that at about 11.30am on the 15th September 2009, Sushila Devi, an elderly shop assistant was in her shop at Namada, Ba when two men forced their way into the shop and threatened her with a cane knife. They took cash, after breaking the cash register, jewellery, watches, groceries, eye glasses, recharge cards and mobile phones. They packed the items into a bag and left on horseback. Acting on information the Police arrested both appellants at Field 40, Lautoka.

[3] In passing sentence, the Magistrate took a rather high starting point of eight years, increasing it by four years for aggravating features of elderly victim, brandishing (but not using) a cane knife, terror occasioned to the victim, and little recovery of goods stolen.

He deducted two years for remorse and the guilty plea and a further 11 months for time in remand arriving at a total sentence of 9 years and one month, with a minimum term of 8 years for the first appellant and six years for the second appellant.

[4] Each appellant appeals on the same grounds:-

(i) that their plea of guilty to the additional offences was equivocal.

(ii) they had never been convicted of the robbery offence.

(iii) they were forced/induced to admit other offences to be taken into consideration.

[iv] the sentence is harsh and excessive.

They have both filed extensive and cogent written submissions.

[5] The State has filed two conflicting submissions, one purporting to uphold the sentence, and another from Ms. Semisi very fairly conceding the appeal.

Analysis

[6] A detailed perusal of the court record leads to the inescapable conclusion that the appellants are indeed correct. They were never convicted of the principal robbery offence.

[7] On the 25th February 2010, the charge was read to them in Fijian. They were represented by Counsel and both entered pleas of guilty to the charge. A summary of facts was put to them and the facts were disputed. Consequently the guilty pleas were vacated and pleas of not guilty entered on their behalf.

[8] On the 22nd April 2010, a further eight charges were put to the first appellant to be taken into consideration and a further sole charge to be taken into account for the second accused. To these additional charges they entered pleas of guilty and admitted facts put to them. They were then convicted of these additional counts. They were unrepresented. Very unfortunately the record does not disclose if the original robbery charge was again put to them that day or not, nor does the record say what they had actually pleaded guilty to.

[9] On the 20th May 2010, the first appellant indicated that he wished to change his plea of guilty to not guilty on one of the additional charges that he had been convicted of, the Magistrate declaring that he would take the change of plea into consideration.

[10] After delays on the fault of both the accused and of the court, the two were sentenced on the 21st January 2011 for all of the offences, including the robbery to which they were deemed to be pleading not guilty as well as the offence to which the first accused had expressed a desire to change his plea.

[11] Both appellants submit that they were forced to sign a sheet pleading guilty to the additional charges on the promise of a lenient sentence, and in any event having been previously represented by Counsel, they were unrepresented on the 22nd April 2010, and did not properly appreciate the nature of and consequences of their guilty pleas.

[12] The second appellant appealed out of time but this court gave him leave to appeal on the likelihood that the appeal would succeed.

[13] I look at the Criminal Procedure Code Form No. 58 which is the form that was signed by the two accused for other offences to be taken into consideration. The form specifically states that they had been convicted of the offence of robbery with violence, and therefore these other offences are taken into consideration. This leads credence to the fact that the robbery offence was not put to the two appellants on the 22nd April and the form is also incorrect in that the two had not been convicted of the robbery.

[14] It is quite clear that after not guilty pleas were entered on the two accuseds' behalf on 25 February 2010 the robbery offence was forgotten and remained in abeyance until sentence was passed on the 21st January 2011. There has been no conviction and obviously the sentence must be quashed.

[15] Having decided that this appeal must succeed on the basis that the two were never convicted, it is not necessary for me to make findings on other grounds, although the ground of equivocal pleas on 22 April 2010 could probably be well made out, as Ms. Semisi concedes. In addition there is no evidence nor indication even that DPP officers were complicit in inducing the two accused to sign the Form 58 ("Taking other offences into consideration"), however the admission into evidence of that form in itself represents a miscarriage of justice. The accused have been "asked" to sign a form which is a lie; a form that states that they have already been convicted of robbery with violence. Such unfairness must obviously taint the convictions for those ancilliary offences.

[16] The robbery charge failing away, there is no basis for the other offences being taken into consideration and those convictions too are quashed.

[17] The appeal of each appellant succeeds. The sentence of nine years one month is quashed and the convictions for offences taken into consideration are also quashed.

[18] The matter should now be remitted to the Magistrate in Ba, for the charge to be laid and heard afresh. The two appellants are to appear in the Ba Magistrates' Court on Wednesday 14th September, 2011 at 9.15am.

Paul K. Madigan
JUDGE

At Lautoka

9th September 2011