Ledua v State [2008] FJSC 31; CAV0004.2007 (17 October 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

Criminal APPEAL CAV0004 of 2007
(Fiji Court of Appeal No AAU0038 of 2004)

BETWEEN:

SAMUELA LEDUA
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice Keith Mason, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice Ronald Sackville, Judge of the Supreme Court

Hearing: Wednesday, 23rd July 2008, Suva

Counsel: Mr F. Vosarogo for the Petitioner
Mr . A. Elliott for the Respondent

Date of Judgment: Friday, 17th October 2008, Suva

JUDGMENT OF THE COURT

[1] On 25 February 2008 a differently constituted Supreme Court granted limited special leave to appeal in this matter.

The Appeal

[2] On an amended information presented by the Acting Director of Public Prosecutions on 24 February 2004, the appellant was charged with the following offences:

"1. INCEST: Contrary to section 178(1) of the Penal Code, Cap 17.

Particulars of Offence

SAMUELA LEDUA on the 30th day of September 2003, at Nasinu in the Central Division, had carnal knowledge of TALICA WAQA LEDUA who was to his knowledge his daughter.

2. ATTEMPTED MURDER: Contrary to Section 214(a) of the Penal Code, Cap 17.

Particulars of Offence

SAMUELA LEDUA on the 02nd day of October 2003 at Nasinu in the Central Division, attempted unlawfully to cause the death of TALICA WAQA LEDUA."

[3] After a trial in the High Court before Winter J and assessors, the appellant was convicted of incest with his daughter and of her attempted murder. He was sentenced to six years imprisonment for the incest offence, to be served concurrently with ten years imprisonment for the offence of attempted murder.

[4] On 15 July 2004 the appellant lodged an appeal against the convictions and sentences in the Fiji Court of Appeal. His letter set out some 20 grounds of appeal, many of which overlapped. On 24 November 2006 the Court of Appeal allowed his appeal against the conviction for incest. That conviction was quashed on the basis that it had not been satisfactorily proved that the requirements imposed by s 181 of the Penal Code Cap 17 had been met. That section reads:

"No prosecution for an offence [of incest] shall be commenced without the sanction of the Director of Public Prosecutions."

[5] The appeal against the conviction and sentence for attempted murder was dismissed.

[6] The grant of special leave to appeal was limited to the following grounds:

1. Whether the conviction should be quashed on the basis that the appellant was not legally represented at trial.

2. Whether the decision of the Court of Appeal quashing the appellant’s conviction on the count of incest has the consequence that the admission of evidence relating solely to that count caused the trial on the count of attempted murder to miscarry.

3. Whether the sentence imposed upon the appellant properly took account of the time spent in custody pending trial.

[7] Directions were given in consequence or which Mr Ledua (the appellant) came to be granted legal aid and represented by Mr F Vosarogo who is the Director of the Legal Aid Commission. The State was represented by Mr A.G. Elliott. The Human Rights Commission, represented by Dr S Shameem and Ms B Devi, provided written and oral submissions as amicus curiae. Submissions were also filed on behalf of the Interim Attorney General. The Court is grateful for the considerable assistance it has received in this matter.

Factual and Procedural Background

[8] The appellant was a 37 year old professional soldier, married with three daughters, but separated from his wife and family. It was not disputed that on 2 October 2003 he went to the residence occupied by his wife and daughters. He carried a bayonet. He was seen entering the house. Shouts were heard and he was then seen leaving the house carrying a knife. His fourteen year old daughter was found lying on a bed inside bleeding from a wound to her chest. She was taken to hospital and emergency surgery performed. She was hospitalised for seven days.

[9] There was unchallenged evidence from a police witness that the appellant came to the police station that day and told the policeman that he had come to give himself up as he had just killed his daughter. He presented a bag containing a bayonet. He was then taken into custody.

[10] The reasons for judgment of the Court of Appeal record that in July 2004 the appellant filed 20 grounds of appeal against conviction and sentence. Additional grounds were filed in May 2005, at which time the appellant first raised the question of compliance with s 181 of the Penal Code in relation to the incest conviction. In July 2005 a further 65 pages of closely written submissions were received. They were characterised by the Court of Appeal as largely argumentative and repetitive. The appellant was self-represented.

[11] The Court of Appeal took the view that there were only two substantially arguable grounds raised, apart from the s 181 ground relating to the incest charge. The first was the appellant’s complaint that he was not legally represented. The second was that confessions he made to the police were wrongly admitted in evidence. These were the only grounds of appeal upon which the appellant addressed the Court of Appeal at the hearing.

[12] In relation to the lack of legal representation at trial, the Court of Appeal was told by the appellant that he had tried to obtain counsel privately but had not been able to afford the fees. The reasons for judgment also record (at [25]) that the appellant’s application for legal aid had been declined. There is, however, no independent evidence of the truth of the latter statement, despite leave having been reserved by us for supplementary material addressing this matter to be put forward by the appellant and his present legal representative. The matter recorded in the next paragraph gives no support to the assertion, and we have concluded that it cannot be accepted as established. It follows that the appellant was not unrepresented after exhausting his rights under the Legal Aid Act.

[13] On the morning of the trial the judge asked whether he wanted to apply for an adjournment to enable him to get a lawyer. He is recorded as having said:

"Sir, if I can get bail to get a lawyer but if not I think its okay for me now." [sic]

When seeking special leave to appeal to this Court in February 2008 as a self-represented party the appellant denied that this remark meant he was happy to proceed to trial without representation. Unfortunately, no greater light was cast on the matter in the written submissions filed on his behalf for the appeal hearing.

[14] Some additional information was also supplied in a supplementary submission on behalf of the respondent that drew upon High Court file records. The following account draws on that information.

[15] The appellant applied for bail on 11 December 2003. It was refused by Shameem J on 30 December 2003. The incest charge was laid on 10 February 2004. Following various mentions, there were further unsuccessful applications for bail. Disclosures were served in April 2004. The trial took place between 7 and 11 June 2004.

[16] The appellant told Shameem J on 30 December 2003 and early 2004 that he was trying to secure the services of a private lawyer and did not wish to apply for legal aid. On 5 March 2004 he told her Ladyship that he needed bail to visit his brother in Lautoka in order to borrow money from him to pay a lawyer. One of his grounds for an unsuccessful bail application made to Winter J on 15 March 2004 was that he needed bail in order to instruct counsel to prepare his defence. Winter J rejected this, pointing out that he could contact family and others while on remand by telephone, letter and by having them visit him in gaol.

[17] As the respondent points out in its supplementary submissions, these records show that the appellant was aware of his right to seek legal aid during the course of the pre-trial hearings and that he declined to do so. He merely pressed for bail. The statement made at the opening day of the trial about getting bail to get a lawyer, but if bail was refused, about representing himself was entirely consistent with this stance.

[18] The appellant submitted to the Court of Appeal that, had he been represented, many inconsistencies in the evidence would have been exposed. He would have been advised to give sworn evidence which would have carried more weight with the assessors. He also contended that the admissibility of the confessions would have been challenged more effectively, possibly leading to their exclusion. The Court of Appeal viewed these and many other arguments in the context of what it found to have been "a very strong, indeed overwhelming prosecution case". The Court of Appeal was unable to accept the suggestion that the fact he was not represented deprived him of a prospect of acquittal. This conclusion, with which we agree, is extremely significant to the application of the proviso in s23(1) of the Court of Appeal Act.

[19] In connection with the admissibility of the records of interview, the appellant has never denied giving the interviews as recorded. He contended, however, that his state of mind was such that his answers were worthless. The trial judge rejected that submission on a voir dire. The appellant evidently did not allege any improper or unjustified conduct going to the voluntariness of his confession. On the question whether the balance of his mind was so disturbed that his answers were completely unreliable, the Court of Appeal said (at [28]):

"While the Appellant was clearly much affected by what had occurred on the morning that his daughter was injured, there is nothing to suggest that he was unfit to be interviewed or that his answers were in any way unreliable. They were, in fact, largely consistent with his unsworn statement."

[20] In relation to the appeal against sentence, the Court of Appeal held that a sentence of ten years imposed on a man who had attempted to murder his daughter with a bayonet was "clearly not excessive". Nothing indicates that any point was taken in the Court of Appeal as to the appellant having spent some nine months in custody awaiting trial.

Legal assistance and legal representation

[21] The first ground of appeal invokes s 28(1)(d) of the Constitution. Sections 28 and 29 of the Constitution relevantly provide as follows:

28.(1) Every person charged with an offence has the right:

...

(a) to be presumed innocent until proven guilty according to law;

(b) to be given details in legible writing, in a language that he or she understands, of the nature of and reasons for the charge;

(c) to be given adequate time and facilities to prepare a defence, including, if he or she so requests, a right of access to witness statements;

(d) to defend himself or herself in person or to be represented, at his or her own expense, by a legal practitioner of his or her choice or, if the interests of justice so require, to be given the services of a legal practitioner under a scheme for legal aid."

29. Every person charged with an offence has the right to a fair trial before a court of law."

[22] A party has the right to self-representation under s 28(1)(d) of the nstitutiitution. It is nevertheless usually in the interests of both parties, the court, and the administration of justinerally that litigants facing serious criminal charges have access to legal assistance and and representation. But the provision of legal services has a cost which may mean that a party cannot afford such services or may choose (reluctantly) not to engage them.

[23] The Legal Aid Act 1996 established the Legal Aid Commission with the duty to provide, subject to the resources available to it, legal assistance to impoverished persons (s.6(1)). A person shall be deemed to be impoverished if he or she is unable to reasonably afford the cost of legal services (s.6(2)).

[24] Section 7 and 8 provide:

"7. – (1) The Commission may provide legal assistance by

(a) arranging for the services of private legal practitioners to be made available to legally assisted persons;

(b) making available the services of appropriately qualified employees of the Commission;

(c) providing or arranging for the provision of duty lawyer services at sittings of Courts and tribunals;

(d) undertaking educational programmes for the benefit of the public or sections of the public;

(e) such other means as the Commission may from time to time consider appropriate.

(2) The Commission may provide legal assistance –

• (a) free of charge;
  
• (b) subject to the payment by the legally assisted person of a contribution;
  
• (c) by contributing towards the cost of legal services obtained by legally assisted persons; or
  
• (d) by such other means as the Commission considers appropriate.
  

(3) Where a contribution is imposed on a legally assisted person pursuant to this Section, the contribution-

• (a) may be fixed in relation to a class of matters, vary according to the individual legally assisted person’s circumstances, or be fixed by reference to published scales of costs or some other criteria;
  
• (b) may be required to be paid at the beginning during, or upon finalisation of proceedings as the Commission considers appropriate;
  
• (c) shall be paid to the Commission, or, with the approval of the Commission retained by the legal practitioner providing legal services to the legally assisted person;
  
• (d) may be required, as a condition of approval of legal assistance, to be secured over such property and in such manner as the Commission considers appropriate.

8.–(1) The Commission shall from time to time formulate and make available to the public guidelines to be applied –

(a) in determining the types of matters in which legal assistance will be provided;

(b) in determining the eligibility of persons to receive legal assistance;

(c) in determining whether or not a contribution shall be required from legally assisted persons and if so, the extent of such contribution; and

(d) in determining the extent (if any) to which the Commission will pay costs awarded against a legally assisted person in any proceeding.

(2) In determining the eligibility of a person to receive legal assistance, the Commission shall take into account all relevant matters which may include –

• (a) the person’s assets and income;
  
• (b) the assets of the person which are in cash or readily convertible into cash;
  
• (c) the person’s liabilities and other financial obligations;
  
• (d) the ability of the spouse of the person, or any other person (including any organisation, company or association) who might reasonably be expected to provide financial support to the person, to assist the person to obtain legal services from private legal practitioners;
  
• (e) the cost of obtaining the legal services sought from private legal practitioners;
  
• (f) the availability of private legal practitioners and the cost of necessary travel; and
  
• (g) any other matter affecting the ability of the person to afford the cost of obtaining legal services from private legal practitioners.
  

(3) In determining a person’s assets, the Commission may disregard the value of the person’s interest in his or her residence.

(4) If the applicant is a corporation, then the Commission may also have regard to matters which would be relevant if the application for legal assistance were made by the Directors and members of the corporation.

(5) The Commission may in special circumstances provide legal assistance to a person in relation to a matter notwithstanding that matter or that person may not be within the guidelines established pursuant to this Section.

(6) The Commission shall take into account in deciding whether or not to grant aid to an applicant comments made by a judge or magistrate in relation to that applicant.

(7) The Commission may at any time amend or terminate guidelines formulated pursuant to this Section or formulate new guidelines."

[25] The 1996 Report of the Fiji Constitution Review Commission (the Reeves Commission) entitled The Fiji Islands: Towards A United Future stated:

"7.92 The Report of the Commission of Inquiry on the Courts of Fiji (1994) made extensive recommendations about the reform of the existing legal aid system in Fiji. A new scheme is now in course of implementation. We consider that a person who is arrested or detained, or is being questioned by the police in a coercive situation on suspicion of having committed a criminal offence, or has been charged, should have a constitutional right to the series of a lawyer under a scheme for legal aid, where he or she does not have sufficient means to engaged a lawyer and substantial injustice would otherwise result.

7.93 Such a right would allow the state considerable latitude in deciding how best to provide such a person with access to a lawyer on a legally aided basis, and to impose reasonable restrictions on the circumstances in which legal aid should be made available. A person should, of course, be informed of the right to legal aid at the time of being informed about the right to consult a lawyer. "
[26] The new scheme for legal aid in course of implementation referred to in para. 7.92 of the Report received statutory force with the passing of the Legal Aid Act 1996 which commenced less than two weeks before the Constitution itself.

[27] Mr Vosaroga informed the Court about aspects of the practical operation of the legal aid scheme as it affects persons like the appellant who are facing serious criminal charges. We do not understand any of what follows to be contentious.

[28] An accused person is informed generally about the availability of legal aid no later than the time of setting down for trial. If he or she wishes to be legally represented and is unable or unwilling to pay the costs involved, he or she will approach the Legal Aid Commission.

[29] The Commission applies a two-pronged test in considering an application. The grant of legal aid depends upon:

(1) the accused person lacking the necessary financial resources; and

(2) a merits review conducted by the Commission.

[30] The inquiry as to financial capacity is required to pay regard to the statutory definition of impoverishment, any relevant guidelines published under s.8(1) of the Legal Aid Act and the factors mentioned in s.8(2). The Commission may also make a grant of legal assistance conditional upon the making of a contribution by the persons concerned. The guidelines do not preclude a grant of legal assistance in special circumstances (s8(5) above).

[31] As to the merits factor, we were informed that officers of the Commission examine the matter in light of the case disclosed by the prosecution, coupled with information provided by the accused and obtained on his or her behalf.

[32] There is a system for internal review of all decisions referable to legal assistance (Legal Aid Act, ss 14-16).

[33] Although it is not presently relevant, we also note the terms of s30 of the Court of Appeal Act which enables the Court of Appeal to assign counsel if it appears desirable in the interests of justice. See also s 8(6) of the Legal Aid Act (set out above).

[34] It is well-established that s.28(1)(d) of the Constitution does not give an absolute right, in every case, to be given the services of a legal practitioner, paid for by the State; nor an absolute right to a lawyer of one’s own choosing (see Eliki Mototabua v. The State CAV 0004 of 2005S at [37], and the authorities there cited). Nor does the section use the language of "equality of arms" (Wainiqolo v. The State CAV 0007 of 2007S at [35]).

[35] Quite often this Court has been presented with arguments by convicted petitioners raising complaints about lack of representation at trial for the first time on appeal to the Court of Appeal or this Court. This is most unsatisfactory and we have generally declined to entertain contested allegations on such matters when the factual groundwork has not been laid in the trial court. As we point out below, the proper place for these issues to be raised and addressed is by way of a timely application for a stay made during the pre-trial stages of the criminal proceedings.

[36] No question arises in this case about the appellant being ignorant of his right to seek legal aid. And we have concluded that the appellant declined to do so, despite having been given ample opportunity. His preference appears to have been to secure the services of a private lawyer or to represent himself. In these circumstances, he has no basis for complaint in this Court about infringement of rights stemming from s. 28(1)(d) of the Constitution.

[37] Section 28(1)(d) confers on every person a constitutional right to defend himself or herself in person as well as a constitutional right to be represented, at his or her own expense, by a legal practitioner of his or her choice. The existence of these primary rights and the qualified terms of the third alternative (" if the interests of justice so require, to be given the services of legal practitioner under a scheme for legal aid") make it plain that a clear evidentiary onus rests upon an accused person if he or she is to establish a breach of the third alternative, and thereby the constitutional guarantee, let alone rely upon it as a ground of appeal after a fair trial according to law.

[38] The language of s.28(1)(d) leaves no room for the direct application of the common law principles declared by the High Court of Australia in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292. That case held that, for Australian law, it would only be in exceptional circumstances that the trial of a serious crime should proceed without representation against an indigent person who is not self-represented by choice. By contrast, questions about unfairness stemming from the inability to obtain legal assistance must under Fijian law be addressed through the prism of the third arm of the constitutional guarantee.

[39] Because the constitutional guarantee speaks by implication to the circumstances prevailing at the start of the particular trial it follows that the primary mechanisms for its enforcement should remain focussed upon the particular. And they should be adapted to conform with other constitutional guarantees, including those of fairness. One aspect of fairness in process (to both prosecutor and accused) is that of reasonable despatch. The constitutional right conferred by s 28(1)(d) is not a tool to be exercised on the eve of a trial to force an adjournment.

[40] Accordingly, the primary tools for addressing disputed claims touching s.28(1)(d) should be those associated with the pre-trial management of criminal trials. An accused person who wishes to assert the threatened breach of the guarantee should apply at the earliest opportunity for a stay of the trial on that basis and adduce supporting information and/or evidence about the issues likely to arise at trial, the complexity of the trial, the full legal aid history and any particular disadvantages suffered by the accused were he or she to be self-represented. This will ensure that the trial is not unduly delayed, proper findings of fact are made and that all procedural issues are addressed in the context of the particular proceedings that are shortly to commence.

[41] It is difficult to imagine circumstances in which a stay application would be entertained before the applicant has exhausted his or her rights under the Legal Aid Act in a timely manner.

[42] Section 41 of the Constitution confers jurisdiction on the High Court to grant "redress" in relation to actual or threatened contraventions of Chapter 4 of the Constitution. The High Court (Constitutional Redress) Rules 1998 prescribe procedures for such applications. Nevertheless, s. 41(4) of the Constitution arms the High Court with a discretion not to grant relief under that section "if it considers that an adequate alternative remedy is available to the person concerned". The decision of Shameem J in Singh v The Director of Public Prosecutions [2003] FJHC 221 that was upheld on appeal (see [2004] FJCA 37) states the applicable principles, following a line of Privy Council cases. An application for constitutional redress is a collateral proceeding that fragments the criminal process. Disputed questions of fact are to be resolved in accordance with well established common law procedures. It will generally be an abuse of process deserving summary dismissal to launch a free-standing application in the High Court civil jurisdiction in relation to an application for an adjournment and/or stay that could and therefore should be made as part of the pre-trial processes of a criminal prosecution. These principles apply to criminal proceedings in any court.

[43] It will, of course, be open to a convicted person to raise issues touching compliance with relevant constitutional mandates as grounds of appeal against conviction. But such an appellant who went into a trial having decided not to press in advance any claim for legal assistance based upon the Legal Aid Act or who made an unsuccessful stay application invoking the constitutional guarantee will face a difficult task. It will be necessary in that event to show that the trial actually miscarried in consequence of s28(1)(d) or some other basis. Merely to argue, as this appellant at times did, that the trial might have been conducted differently had the accused been legally represented will not suffice to establish breach of the guarantee, let alone a substantial miscarriage of justice justifying the setting aside of the conviction as required by s23(1) of the Court of Appeal Act.

[44] The conclusion of the Court of Appeal that the appellant lost no prospect of acquittal by reason of being unrepresented demonstrates why the attempted murder conviction should stand even were there concern about compliance with s28(1)(d) in the present case.

[45] No one represented in this appeal has suggested that the existing scheme of legal aid is itself unconstitutional in any way. In so observing, we are not ourselves suggesting any conclusion on the matter. It has not been argued that the statutory two-pronged system of financial and merits assessment in itself entails a breach of the constitutional guarantee.

[46] The phrase "if the interests of justice so require" is frequently encountered in a variety of statutory and non-statutory contexts each of which may give it particular colour that cannot be translated from one context to another. Its content and application are to be addressed on a case by case basis and on the basis of evidence, not speculation.

[47] Nevertheless, some generalisations may be offered. They derive from common sense and the terms of the Legal Aid Act 1996 when the Constitution commenced. The interests of justice are not identical to the interests of the accused person. The constitutional provision does not offer a guarantee of State funding in relation to every case or to support the pursuit of any and every conceivable line of defence. Nor can an impoverished accused person willing to receive legal aid object on the basis that the lawyer assigned is employed by the Commission.

[48] The Fiji Human Rights Commission submitted that the phrase "interests of justice" in s. 28(1)(d) was a signpost that Parliament was conscious of the need to respect the constitutional separation of powers between the judiciary and the Parliament in this country. So much may readily be accepted from this and many other premises. But it does not follow that courts interpreting and applying constitutional guarantees should pay studied disregard to the impact of their decisions upon the resources of the State. The provision of a range of essential services such as education and health and the balancing of the financial calls upon even the "justice" budget mean that caution and mutual respect are called for.

[49] Nevertheless, we are here dealing with a constitutional guarantee that in the final analysis cannot be abrogated by legislation, government practice or want of funds. The Legal Aid Commission’s statutory duty to provide legal assistance to impoverished persons is stated to be "subject to the resources available to it" (Legal Aid Act, s6(1)). But the duty of the Courts in Fiji to oversee the rule of law means that the Commission’s resources cannot be the ultimate touchstone of compliance. If a court is satisfied of an imminent breach of s28(1)(d) then the prosecution should be stayed unless and until the constitutional right is accommodated. This is preferable to a declaration or order commanding the State and/or the Commission to provide a particular level of legal assistance: such an order draws the court into an unnecessary inquiry about the means and other resources of the accused, and has other potential embarrassments. If the intent of a conditional stay designed to enable appropriate legal assistance to be provided is not met, then the court retains power to stay the prosecution permanently by applying the well-known principles about prejudice stemming from delay (see generally Mohammed Sharif Sahim v the State. Unreported, Court of Appeal, Misc Action No.17 of 2007, 25 March 2008.

[50] There will undoubtedly be cases that call for a stay of the prosecution unless the trial can take place fairly and in compliance with specific guarantees such as s. 28(1)(d). In time, a body of jurisprudence will build up, based upon evidence and specific rulings yet expounding more general principles. We note and commend the analysis of Wilson J in The State v Timoci Silatolu [2002] FJHC 69 identifying as relevant (but non-exhaustive list) the factors of:

(a) the seriousness of the offence charged;

(b) the length and complexity of the case:

(c) the potential sentence involved; and

(d) the inability (if it be so) of the applicant to contribute effectively to his or her own defence, if forced to defend in person.

[51] The independent constitutional right to a fair criminal trial (s29(1)) means that issues of fairness in procedure require separate consideration. Nevertheless, the terms of s28(1)(d) and the non-applicability of Dietrich’s Case in this country mean that a trial is not necessarily unfair for want of legal representation. A trial may be fair or unfair whether or not the accused was legally represented. Fairness to an unrepresented accused will impose certain burdens on a trial judge that are generally well known and do not call to be addressed in this appeal.

Joinder of Incest Count

[52] As indicated, the Court of Appeal quashed the incest conviction because of non-compliance with s181 of the Penal Code. The appellant submits that the trial of the attempted murder count also miscarried because the assessors would have had to consider that count without evidence as to motive if the incest material were absent. This submission entails a fallacy. Evidence as to motive could be led on the attempted murder count. As the appellant points out in his own submissions on appeal, the evidence about the incest helped demonstrate the motive to kill, since it suggested that the appellant wished to suppress the truth of the relationship that had been uncovered.

[53] This conclusion reinforces that reached on the earlier ground of appeal. A major plank of the case as to miscarriage stemming from the lack of representation was the contention that the appellant would have kept the damning evidence away from the assessors had he been represented and had the s181 Penal Code point been taken at trial. That evidence could and would have been properly led in any event.

Pre-trial Custody and Sentencing

[54] It is common ground that a sentencing judge is required to give due allowance for time spent in custody pending trial when he or she comes to sentence following conviction. Here there is nothing in the remarks as to sentence to show that this was taken into account as a "mitigating" factor for downwards adjustment of the ten year starting point identified by the sentencing judge.

[55] Despite the starting point being generous for a crime of this nature, involving the intention to kill a young child in order to suppress her evidence and despite the matter not having been raised in the Court of Appeal, we would uphold this ground in light of the material indicating that the matter was overlooked by the sentencing judge. The period of pre-sentence custody was approximately nine months.

[56] Accordingly, we made the following orders in the appeal:

(1) Appeal upheld in part.

(2) Appeal against conviction dismissed.

(3) Appeal against sentence allowed. Sentence for attempted murder reduced from ten years to nine years three months.

Hon Justice Keith Mason
Judge of the Supreme Court

Hon Justice Kenneth Handley
Judge of the Supreme Court

Hon Justice Ronald Sackville
Judge of the Supreme Court

Solicitors:

Petitioner in Person
Office of the Director of Public Prosecution, Suva for the Respondent