Rocatikeda v State [2015] FJHC 864; HAA32.2015 (12 November 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAA 32 OF 2015

BETWEEN:

VILIAME ROCATIKEDA
APPELLANT

AND:

THE STATE
ESPONDENT

Counsel : The Appellant in person
Mrs. R. Uce for the Respondent

Date of Hearing : 5th of November 2015
Date of Judgment : 12th of November 2015

JUDGMENT

Introduction

1. The Appellant files this appeal against the conviction and the sentence of the Learned Magistrate of Lautoka delivered on 5th of August 2015. The Appeal was initially founded on the ground that the learned Magistrate erred in law in passing the sentence. The Appellant then raised further grounds in his written submissions, they are that
   
   1. The Appellant was initially charged with one count of theft and pleaded guilty for the said charge,
      
   2. The charge was never amended to an offence of Robbery.
      
   3. If the charge is amended, then the Summary of Facts should also be amended in order to establish the elements of the offence of robbery,
      
   4. The learned Magistrate erred in law in considering the Appellant's pending matters as an aggravating factors,
      
2. The Appeal was set down for hearing on 5th of November 2015, where both parties consented to conduct the hearing by way of written submissions. I accordingly directed the parties to file their respective written submissions, which they filed as per the direction. Having carefully considered the respective submissions, I now proceed to pronounce my judgment as follows.
   

Background

3. The Appellant was charged in the Magistrate court for one count of Robbery contrary to Section 310 (1) (a) (i) of the Crimes Decree. The Appellant pleaded guilty for this offence on 4th of August 2015. Subsequent to his plea of guilty, the Learned Magistrate convicted him for the offence of Robbery and sentenced for 18 months imprisonment with 12 months of non-parole period. The Appellant has now appealed against that sentence.
   

Law and Analyses

4. I first draw my attention to the first and second grounds of appeal. The both grounds are founded on the contention that the Appellant was actually charged with one count of theft and the charge was never amended to an offence of robbery.
   
5. Having carefully perused the copy of the record of Magistrate's court proceedings, I find that the accused was charged only for robbery. According to the minutes of the learned Magistrate, it appears that the charge was read and explained to him and the learned Magistrate has satisfied that the Appellant has understood the charge. Accordingly I find the first and second grounds of appeal have no merit.
   
6. The third ground of appeal is founded on the contention that the summary of facts does not support the main elements of the offence of robbery.
   
7. Section 174 of the Criminal Procedure Decree deals with the procedure of recording of the plea of the accused in the Magistrates' court, where it states that;
   
   1. The Substance of the charge or complaint shall be stated to the accused person by the court, and the accused shall be asked whether he or she admits or denies the truth of the charge,
      
   2. If the accused person admits the truth of the charge, the admission shall be recorded as nearly as possible in the words used by the accused, and the court shall convict the accused and proceed to sentence in accordance with the Sentencing and Penalties Decree 2009,
      
8. Justice Gates (as his lordship then was) in State v Isaiah Saukova ( 2000) 1 FLR 135) has discussed the duty of the Magistrate in respect of recording the plea of guilt, where his lordship held that;
   

"it is essential that a Magistrate be satisfied that an Accused is admitting facts which amount to all of the legal elements that go to prove the charge in question. Where the Accused is represented by counsel, the Magistrates task is easier. Where the Accused is unrepresented a more onerous burden is cast on the court. But the Magistrate should ensure that the Accused is not simply pleading guilty out of a feeling of remorse for being involved in a result as opposed to causing a result".

9. Accordingly, the appropriate procedure in the Magistrates' court in recording the plea of the accused constitute four main procedural steps. The first step is to read and explain the charge to the accused. Having satisfied that the accused properly understood the charge, the court then proceed to record his plea. If he pleaded guilty, the learned Magistrate is then required to read the summary of facts, outlining the alleged incident to the accused. The learned Magistrate must satisfy that the summery of facts has outlined all essential elements of the offence as charged. The learned Magistrate could then record the conviction if the accused admits the summery of facts.
   
10. Having discussed the applicable procedure of taking of plea of the accused in the Magistrate's court pursuant to Section 174 of the Criminal Procedure Decree, I now turn onto this instant case.
    
11. The Appellant was charged for one count of Robbery contrary to Section 310(1) (a) (i) of the Crimes Decree. Section 310 (1) (a) (i) of the Crimes Decree states that;
    

A person commits an indictable offence (which is triable summarily) if he or she commits theft and

1. Immediately before committing theft, he or she
   
   1. uses force on another person,
      

12. Accordingly, the main elements of the offence as charged are that;
    
    1. The Accused,
       
    2. Committed an offence of theft as defined under Section 291 of the Crimes Decree,
       
    3. Used force on another person immediately before committing the offence of theft,
       

13. According to the summery of facts that tendered in the Magistrate court, the Accused has grabbed the hand bag of Ranjita Narayan from her lap, while she was seated on the front passenger seat of the car registration number HW 300. The summary of facts does not reveal that the accused had use any form of force to any other person either before or after grabbing the handbag. Hence, I find the Summery of facts does not support one of the main elements of the offence of robbery as charged. Accordingly, it is my opinion that the accused was not properly and correctly explained the substance of charge as required under Section 174 (1) Criminal Procedure Code.

14. Under such circumstances, the subsequent conviction and the sentence entered by the learned Magistrate pursuant to Section 174 (2) of the Criminal Procedure Code is not valid. Accordingly, I make following orders that;

1. The conviction entered against the Appellant on the 5th of August 2015 is hereby set aside,
   
2. The Sentence of the learned Magistrate delivered on 5th of August 2015 against the Appellant is hereby quashed,
   
3. This matter be remitted for re-hearing before a different Magistrate in Lautoka Magistrate's court
   

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
12th of November 2015

Solicitors : Office of the Director of Public Prosecutions