Raqauqau v State [2012] FJHC 1017; HAA004.2012 (13 April 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No. HAA 004 /2012

BETWEEN:

SAVENACA RAQAUQAU
Appellant

AND:

STATE
Respondent

BEFORE: Mr. Justice P. K. Madigan

COUNSEL : Appellant in Person
Mr. M. Mataiva on 10th February and
Mr. Vodokisolomone on 13th February 2012 for State

Date of Hearing : 10th and 23rd February & 13 March 2012
Date of Judgment : 13 April 2012

JUDGMENT

1. On the 5th April 2011 in the Magistrates Court at Nasinu, the appellant entered a plea of guilty to one count of Burglary contrary to Section 312(1) of the Crimes Decree 2009 and one count of Theft contrary to Section 291(1) of that Decree.
   
2. He was sentenced on the 21st April 2011 to consecutive terms of six years and three years respectively.
   
3. The appellant now seeks to appeal both his convictions and sentences. He submits that the plea of guilty was equivocal and that the sentence was harsh and excessive.
   
4. The appellant has filed brief written submission and the state was ordered to do so at the hearing of February 23rd. They filed none. Mr. Vodokisolomone proffered the excuse that the Counsel "in carriage" had been transferred to Labasa. That is unacceptable. Individual counsel is not responsible for filing submissions when so ordered. It is incumbent on the Office of the Director of Public Prosecutions to defend the appeal and file submissions in pursuit of that duty. Seventeen days were more than enough for attention to this. Mr. Mataiva cannot use his transfer as an excuse to drop all work he is responsible for. The court can only assume that the State has no interest in defending the appeal.
   
5. The simple facts are that during the night of 28/29 September 2010, the accused entered the house of one Ashwin Lal and his family and stole an Acer brand laptop valued at $2,500, a mobile phone worth $166 and $30 in cash. The accused was arrested when trying to sell the laptop in Nasinu and was subsequently interviewed under caution, then charged.
   
6. The accused is 35 years old and a farmer from Vunisei village, Rewa and has 56 previous convictions, 38 of them for offences similar to the instant offences. Nineteen previous convictions are "current".
   
7. In his sentence the learned Magistrate was cognizant of the fact that his previous convictions made him a habitual offender (although a Magistrate cannot formerly categorise him as such) and that all of his previous prison terms for dishonesty had not reformed him. The Magistrate took a high starting point of six years for the burglary and three years for the Theft. He reduced each of these sentences by two years for his plea of guilty arriving at an interim total of four years and two years respectively. He was unable to find any further meaningful mitigation. He then increased these sentences by two years and one year respectively for aggravating features which he stated to be:
   
   • Felonious intention
   • House breaking and entering
   • Committing Theft
     

arriving at final sentences of six years and three years which he then made consecutive on the basis that he was a serious serial offender.

8. The appellant first appeared in Court on the 21st October 2010 and then made 8 appearances before the Magistrate before the charges were put to him on 1st February 2011. He then pleaded not guilty. He then appeared eight times more before plea was taken again on the 8th April 2011. He then pleaded guilty. No enquiry was made of him why he had changed his plea or whether there were any extenuating circumstances affecting this plea.
   
9. The appellant's grounds that his plea was equivocal must have some force. He had already entered pleas of not guilty on the 1st February 2011 and therefore when there is a change of plea to guilty on the eighth appearance later, it must be incumbent on the Magistrate to enquire why. Even if there is not a change of plea, it is now accepted practice that when an accused pleads guilty enquiry must be made as to whether it is a plea of his own free will and that there is no influence on him and whether he understands the consequence of his plea. In this case the Magistrate said nothing. Knowing that he had earlier pleaded not guilty, an unexpected change of plea should have rung alarm bells in the Magistrate's head.
   
10. The appellant submits in his written submission to this Court that his

plea was changed on the advice of the "prosecuter"(sic) and the promise of a suspended sentence. Of course, had the State seen fit to defend this appeal, this allegation could perhaps have been explained.

11. In the premises the appeal against conviction must succeed. Even an

accused with 56 previous convictions is entitled to a fair hearing and this court will always ensure that such fairness is extended to unrepresented accused.

12. Given the success of the appeal against conviction, the appeal against

sentence falls away. Without wanting to tie the hands of the new sentencing tribunal should the appellant be again convicted, the court would stress:

1. The aggravating factors quoted by the Magistrate (and referred to in paragraph 7 hereof) can NOT be aggravating features: they are all inherent elements of the crimes charged.
   
2. The sentences appear to be excessive even for a confirmed recidivist.
   
13. Sentences can be made consecutive for an habitual offender, and in

terms of Section 11 of the Sentencing and Penalties Decree 2009, I declare him to be so.

14. Very surprisingly bail was afforded to this accused by the Magistrate

below despite the fact that the accused has six previous convictions for escape from lawful custody.

15. The appeal against conviction succeeds.
    

The conviction ended below is vacated and the appellant is to appear in the Nasinu Magistrates Court for trial de novo. A production order will be issued to bring him before a different Magistrate in Nasinu on Monday 16th April at 9.15 am. His previous bail is revoked and he will remain in custody until completion of his trial.

Paul K. Madigan
JUDGE

At Suva
13th April 2012