Tagicakibau v State [2013] FJHC 681; HAA21.2013 (12 December 2013)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 21 OF 2013

BETWEEN:

MARIKA TAGICAKIBAU
Appellant

AND:

THE STATE
Respondent

Counsel: Mr. A. Vakaloloma for Appellant
Mr. M. Maitava for State

Date of Hearing: 12 December 2013
Date of Judgment: 12 December 2013

JUDGMENT

[1] This is an appeal against conviction and sentence. The appellant appeared in person in the Magistrates' Court and pleaded guilty to 9 counts of theft. He was sentenced to 2 years' imprisonment on each count, to be served concurrently.

[2] The complainant was an employee of Namale Island Resort. In 2011, he felt ill. He came to Labasa hospital for treatment. While in Labasa, the appellant took care of the complainant. The complainant allowed the appellant to access his bank account at Westpac by giving his ATM card and pin number. On 25 July 2011, the complainant passed away. The appellant kept the ATM card with him. Between 25 July 2011 and 27 July 2011, the appellant made nine withdrawals from the complainant's account, to a total sum of $2270.00. Later when the complainant's wife learnt about these withdrawals, she reported the matter to the police.

[3] The grounds of appeal are:

(i) THAT the Learned Trial Magistrate erred in law and in fact when he failed to consider that the Appellant was unrepresented by a legal counsel before his plea was put to him.

(ii) THAT the Learned Trial Magistrate erred in law and in fact when he failed to consider that the Appellant did not plead guilty to the Charges although admitted withdrawing the money.

(iii) THAT the Learned Trial Magistrate erred in law and in fact when not provided the right to be represented or be reminded of their right to counsel.

(iv) THAT the Learned Trial Magistrate erred in law and in fact when he failed to advise the Appellant that they could seek assistance from Legal Aid Commission which is made available to them by the State when they cannot afford to pay a lawyer.

(v) THAT the Learned Trial Magistrate erred in law and in fact when he failed to consider before sentencing the accused's mitigation submission that his action arises before death and the wishes of the deceased that if he died the accused to use the money for his funeral.

(vi) THAT the Learned Trial Magistrate erred in law and in fact when he failed to consider that the Appellant had sought to reconcile and compensate the deceased family with the money given to him by the deceased person as the family were separated and the Appellant was the only one looking after the deceased.

(vii) THAT the Learned Trial Magistrate erred in law and in fact when he convicted the Appellants merely because he admitted and pleaded guilty to withdrawing the money and not to the charge which is a denial of the right to fair trial.

(viii) THAT the sentence is harsh and excessive.

Conviction Appeal

[4] An appeal against conviction arising from guilty plea can lie only in limited circumstances. The limitation of appeal on plea of guilty is placed by section 247 of the Criminal Procedure Decree. Section 247 states:

"No appeal shall be allowed in the case of an accused person who has pleaded guilty, and who has been convicted on such plea by a Magistrates Court, except as to the extent, appropriateness or legality of the sentence."

[5] However, the limitation only applies to unequivocal pleas. If a plea is equivocal, then section 247 does not apply and the court can proceed to hear the appeal against conviction. The circumstances a plea may be considered equivocal depend on the facts of each case. In Maxwell v The Queen (1996) 184 CLR 501, the High Court of Australia identified some of those circumstances at p 511:

"Those circumstances include ignorance, fear, duress, mistake, or even the desire to gain a technical advantage."

[6] The State concedes the appeal against conviction. Mr. Maitava informs the Court from the bar table that he was present when the appellant was arraigned in the Magistrates' Court. He said the appellant was advised of his right to counsel and was further told that he could consult a free government lawyer. Mr. Maitava felt that the learned Magistrate rushed into taking the appellant's plea when he was not represented by counsel. In Mr. Maitava's opinion the appellant did not understand the charges and the facts even after being explained in Itaukei language. This Court is astonished by Mr. Maitava's submissions. Firstly, Mr. Maitava's perceptions and opinions are irrelevant to the issue of equivocation of the appellant's guilty pleas. Secondly, if Counsel wanted to challenge the accuracy of the court record, he should have filed an affidavit rather than giving evidence from the bar table.

[7] It has long been established that an appellate court will only consider an appeal against conviction following a plea of guilty if there is some evidence of equivocation on the record (Rex v Golathan (1915) 84 L.J.K.B 758, R v Griffiths (1932) 23 Cr. App. R. 153, R v. Vent (1935) 25 Cr. App. R. 55).

[8] According to the court record, the appellant appeared in the Magistrates' Court for arraignment on 23 September 2013. He was advised of his right to counsel and the appellant elected to represent himself. The court record is silent as to whether the appellant was advised that he could contact Legal Aid Commission if he did not have the means to engage a private lawyer. In any event, each count was read and explained to the appellant. The appellant indicated that he understood the charges. He pleaded guilty to the charges and he told the learned Magistrate that he was not induced or forced. Facts admitted by the appellant disclosed that the withdrawals were made without the consent of the complainant. In mitigation the appellant said:

"43 years old. Married with 2 children. (Form 6/Form 3). Farmer (Yaqona). I was looking after Rupeni when he was sick. He gave the ATM card to use. I am willing to pay $1500 today. Seek Court apology."

[9] The right to counsel no doubt is an important safeguard for a fair trial and to prevent a miscarriage of justice. However, the right to counsel is not an absolute right. That right has to be balanced with other competing interests present in the criminal trials, as pointed out by Gates J (as he then was) in State v Takiveikata - Ruling No 2 [2004] FJHC 123; HAC0005.2004S (22 July 2004) at [17]:

"From all of these matters it can be deducted that the rights given under the Bill of Rights in the supreme law are not lightly to be suppressed or eroded. But the right to counsel of choice cannot be an absolute right. Rather it is one to be balanced with the interests of justice: Rex v Grondkowski [1946] 1 RB 369 at p.372; "the overall requirements of justice" Conroy v Conroy [1917] NSWStRp 44; [1917] 17 SR (NSW) 680 at p.682. For the concept of the interests of justice carries with it the notion of practicality, reasonableness, and regard for the rights of others, including the rights of other litigants and participants in the case in question or in the case lists awaiting their trials. Some want advancement of their cases so as to have their matters soon concluded and to have anxiety thereby removed from their lives. Others want to put off the evil day, the day of their trial and instead prefer to delay matters."

[10] In the present case, the appellant was not denied his right to counsel. He was advised of his right and he waived that right. What is unclear in the court record is whether the appellant was aware that he could contact legal aid lawyer free of charge if he could not afford a private lawyer. Even if he was unaware of the right to consult a legal aid lawyer, in my judgment, his guilty pleas remain unequivocal. He told the learned Magistrate that he was pleading guilty freely and voluntarily. Nothing he said in the mitigation averted his pleas into equivocal pleas. The complainant may have allowed the appellant to use his ATM card to make withdrawals while he was alive, but upon the complainant's death, that consent ceased to operate. As pointed out by the learned Magistrate, the appellant took advantage of the situation after the complainant's death by emptying his bank balance. For these reasons, the Court finds Mr. Maitava has conceded the appeal against conviction in error.

[11] The appellant was charged with theft contrary to section 291 of the Crime Decree. Section 291 is a summary offence triable in the Magistrates' Court. The appellant did not have a right of election and therefore the Magistrate was not obliged to put the election to the appellant.

[12] The guilty pleas are clearly unequivocal and the appeal against conviction therefore must fail.

Sentence Appeal

[13] The principal ground of appeal against sentence is that it is harsh and excessive.

[14] In his sentencing remarks the learned Magistrate said this was a breach of trust case. He referred to case of Ratusili v State [2012] FJHC 1249; HAA011.2012, and adopted the guideline that "theft of large sums of money and thefts in breach of trust, whether first offence or not can attract sentences of up to three years". He picked 3 years as his starting point and after adjusting for the mitigating and aggravating factors, imposed a sentence of 2 years' imprisonment.

[15] The aggravating factors identified by the learned Magistrate to increase the sentence by 1 year were as follows:

(i) The accused took advantage of the deceased when he was sick and admitted at the hospital by clearing his bank account.

(ii) The accused took the money from the accused's account over a period of 3 consecutive days.

(iii) It seems that the accused had planned to steal the deceased's money.

[16] There was no evidence that this was a planned theft. Rather it was an opportunistic theft when the complainant unexpectedly passed away while he was being cared by the appellant. The withdrawals subject of the charges were made from the day the complainant had passed away. Nor did the 3-day period over which the withdrawals were made aggravated the offence.

[17] It is clear that the learned Magistrate took impermissible factors into account to increase the sentence. There has been an error of mixed law and fact in the sentence. The appeal against sentence must be allowed.

Result

[18] Appeal against conviction dismissed.

[19] Appeal against sentence allowed.

[20] The term of 2 years on each count is quashed and substituted with a term of 1 year imprisonment, to be served concurrently effective from 23 September 2013. No order for suspension because of the breach of trust involved.

Daniel Goundar
Judge

At Labasa
12 December 2013

Solicitors:
Office of Messrs A. Vakaloloma & Associates, Suva for Appellant
Office of the Director of Public Prosecutions, Labasa for State