Tuilaselase v State [2008] FJSC 38; CAV0009.2007S (25 February 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0009 OF 2007S
(Fiji Court of Appeal No. AAU0010/2007S)

BETWEEN:

PENIASI TUILASELASE
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon. Justice Keith Mason, Judge of the Supreme Court
The Hon. Justice Robert French, Judge of the Supreme Court
The Hon. Justice Mark Weinberg, Judge of the Supreme Court

Hearing: 18 February 2008, Suva

Counsel: Petitioner in Person
W. Kurisagila for the Respondent

Date of Judgment: Monday, 25 February 2008, Suva

JUDGMENT OF THE COURT

Introduction

1. Peniasi Tuilaselase seeks special leave of this Court to appeal against a decision of the Court of Appeal which summarily dismissed his application for leave to appeal out of time against a judgment of the High Court. Mr Tuilaselase had been convicted of the offences of robbery with violence and unlawful use of a motor vehicle and sentenced to terms of six years imprisonment on the first, and six months on the second to be served concurrently. He was sentenced to a further term of 18 months imprisonment for breaching a good behaviour bond by reason of those offences. The High Court allowed his appeal to the extent that it reduced the sentence for unlawful use of a motor vehicle to four months and quashed the sentence imposed for breach of the good behaviour bond. However, the Court increased the term of imprisonment on the count of robbery with violence from six years to seven years.
   
2. For the reasons that follow, we are satisfied that the petition for special leave should be dismissed.
   

Factual and procedural background

3. Peniasi Tuilaselase and Elena Bola were convicted on 5 April 2006, on their own pleas of guilty, of the offences of robbery with violence and unlawful use of a motor vehicle. The statements of their offences were as follows:
   

"ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(b) of the Penal Code Act 17.

Particulars of Offence

PENIASI TUILASELASE, ELENA BOLA and others on the 1st day of April, 2006 at Suva in the Central Division, robbed ROHIT KUMAR s/o RAJ KUMAR of $87.00 in cash, Taxi meter valued at $220.00, Kenwood Radio valued at $250.00, 2 speakers valued at $200.00 all to the total value of $752.00 and immediately before the time of such robbery did use personal violence to the said ROHIT KUMAR s/o RAJ KUMAR.

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to Section 292 of the Penal Code Act 17.

Particulars of Offence

PENIASI TUILASELASE, and others, on the 1st day of April 2006 at Suva in the Central Division, unlawfully and without the colour of right but not so as to be guilty of stealing, took to their own use a vehicle registration number LT 5541, the property of ROHIT KUMAR s/o RAJ KUMAR."

4. The facts of the case briefly were that on 1 April 2006 Ms Bola and another woman stopped a taxi and asked to be taken to Rifle Range. On the way they asked the driver to stop so they could relieve themselves. While the taxi was stopped Mr Tuilaselase and another man approached the driver, pulled the key out of the ignition, dragged him out of the driver’s seat, assaulted him and put him in the back seat of the car. Mr Tuilaselase then drove the taxi with Ms Bola in the front passenger seat. They left the driver along Cunningham Road and drove to the Koronivia Research Station where they abandoned the car. They stole the taxi meter, some cash, a Kenwood radio and two speakers. The car was extensively damaged.
   
5. On 19 April 2006 Mr Tuilaselase was sentenced to six years imprisonment on the count of robbery with violence and six months on the count of unlawful use of a motor vehicle. The two sentences were to be served concurrently. The magistrate also ordered the forfeiture of a good behaviour bond previously imposed on Mr Tuilaselase. For committing offences during the period of his bond, Mr Tuilaselase was sentenced to a further 18 months imprisonment to be served consecutively upon the six year term. Ms Bola was sentenced to six years imprisonment.
   
6. On 8 May 2006 Mr Tuilaselase and Ms Bola both appealed to the High Court against their sentences. The stated grounds of Mr Tuilaselase’s appeal were as follows:
   

"A. The sentence imposed by the learned magistrate was manifestly harsh and excessive having regard to all the circumstances.

B. That the learned magistrate does not take into consideration of my guilty plea and also the victim of this Robbery does not receive any injuries. [sic]

C. That on the same day 19/4/06 the court sentence two man to one (1) year imprisonment each in a Robbery with Violence and see state vs Josaia Dule and others CN 2168/05. [sic]

D. That the learned magistrate further imposed 18 months on my boundover which was due on the 19th of April, 2006.

E. That the aforesaid sentence did not accord with sentencing principles."

7. Shameem J in the High Court noted that the magistrate had taken seven years imprisonment as a starting point from which to calculate the sentence imposed for the robbery offence. That starting point was correct. However she regarded the sentencing process thereafter as in error. There had been no adjustment for any of the mitigating factors, save for the guilty plea. Nor had there been any adjustment for the aggravating factors. She also found there was no evidentiary basis for a finding by the magistrate that Ms Bola was the mastermind.
   
8. Shameem J referred to aggravating factors in relation to Mr Tuilaselase which she identified as the infliction of violence, damage to the vehicle, the removal of items from the vehicle, the planning involved in the robbery and the fact that it was committed by several persons on a taxi driver. She identified as mitigating factors, the early guilty plea and the absence of any injuries to the victim. Mr Tuilaselase deserved no credit for good character. With 39 previous convictions Shameem J regarded him as a habitual offender. The sentence for his offence should have been seven years imprisonment.
   
9. On the other hand, Shameem J accepted that Ms Bola was a decoy who allowed Mr Tuilaselase and his companion to attack the driver. She was not necessarily the driving force behind the plan and the learned magistrate erred in finding that she was. Mitigating factors were her relatively good character, her secondary role in the offending and her early guilty plea. She did not inflict any violence on the driver. Aggravating factors were the fact that it was an attack on a taxi driver, the value of the items stolen and the damage to the car. Shameem J considered a sentence of four years imprisonment to be appropriate.
   
10. As to the breach of the bond, there was no jurisdiction to sentence Mr Tuilaselase to a further term of imprisonment. The sentence could only have been the forfeiture of the bond. The 18 month term in respect of the bond breach was quashed.
    
11. In the event, Shameem J allowed the appeal and sentenced Mr Tuilaselase to seven years imprisonment on the count of robbery with violence. The term of imprisonment in respect of the unlawful use of a motor vehicle was reduced to four months to be served concurrently with the seven year term. Ms Bola’s sentence of six years imprisonment was substituted with a term of four years imprisonment.
    

The grounds of appeal to the Court of Appeal

12. The judgment of the High Court was given on 18 August 2006. On 7 December 2006, Mr Tuilaselase sent a letter to the Registrar of the Court of Appeal seeking leave to appeal out of time against the judgment of the High Court. His application offered no explanation for the delay. His stated grounds of appeal were in substance as follows:
    

1. Shameem J erred in law and in fact in overlooking an error made by the sentencing magistrate which Mr Tuilaselase raised before her in his appeal. This appears to have been a reference to Shameem J’s acceptance that the seven year starting point was correct but that there had been a failure to adjust for aggravating and mitigating factors.

2. Shameem J erred in law and in fact in failing to consider that the magistrate omitted to consider mitigating factors, namely:

(a) no injury inflicted on the driver;

(b) Mr Tuilaselase’s co-operation with the police in their investigation and by admitting the crime;

(c) the absence of any weapon used in the robbery;

(d) Mr Tuilaselase’s remorse evidenced by his plea of guilty;

(e) the fact that he pleaded guilty at the first available opportunity.

3. Shameem J erred in law and in fact in failing to consider that the magistrate did not inform or advise him on his need for legal counsel.

4. Shameem J erred in law and in fact when she said that she would quash his suspended sentence but did not. This seems to have been a reference to the quashing of the sentences imposed for breach of the bond.

The Court of Appeal’s order

13. On 6 February 2007 the President of the Court of Appeal made orders recorded thus:
    

"[RE: LEAVE TO APPEAL]

2nd Appeal

No right of appeal

Dismissed under section 35(2)."

The Petition for Special Leave

14. On 22 February 2007 Mr Tuilaselase filed a document entitled "Petition of Appeal" which appears to have been appropriate to a petition of appeal to the Court of Appeal. It was accompanied by a letter addressed to the "The Presiding Hon Judge" in the Criminal Appellate Jurisdiction of the Supreme Court of Appeal. It began with the words:
    

"Your appellate respectfully wishes to lodge an application for leave determined by the full bench of judges, under S 35(3) of the court of appeal act." [sic]

Although it appears to have been an attempt to further invoke the jurisdiction of the Court of Appeal, it has been filed in this Court and treated effectively as a petition for special leave to appeal against the decision of the President given on 6 February 2007. The State took no point on the form.

15. The letter setting out proposed grounds of appeal was headed up "APPLICATON FOR APPEAL FOR SENTENCE AND CONVICTION". However the grounds related entirely to sentence. They were in substance as follows:
    

1. The sentence was disproportionate to the offence.

2. The sentence imposed on Mr Tuilaselase was unfairly discriminatory when compared with that imposed on Ms Bola.

3. The sentence was so excessive as to satisfy the Court that there was a failure to apply the right sentencing principles.

4. The increase in the sentence imposed on Mr Tuilaselase was "manifestly excessive and wrong in principle" having regard to the fact that there were no injuries sustained by the driver and no weapon used in the robbery.

5. Reduction of the sentence and immediate release would be an act of mercy.

6. The sentencing magistrate took irrelevant factors into consideration (these were not specified).

7. The sentencing magistrate denied Mr Tuilaselase’s right to be represented by counsel under s 28(1) (d) of the Constitution.

16. Mr Tuilaselase submitted "Additional Grounds" on 12 November 2007. In the additional grounds he referred to the following matters:
    

1. Ambiguity in his plea in the Magistrates Court.

2. Failure by Shameem J to consider the failure by the magistrate to inform or advise on whether Mr Tuilaselase needed legal counsel.

3. Error in fact and law by the sentencing magistrate contrary to s 29(1) of the Constitution which guarantees a right to a fair trial before a court of law.

4. Unfair treatment by the sentencing magistrate breaching his right to a fair trial. There was no inquiry by the magistrate whether Mr Tuilaselase’s guilty plea was given of his own free will or whether he was forced to make it.

A further document dated 12 February 2008 was forwarded to the Court by Mr Tuilaselase. This repeated elements of the additional grounds.

Whether special leave should be granted

17. The Court has heard from Mr Tuilaselase and has considered the grounds of his appeal to the High Court and the application out of time for leave to appeal to the Court of Appeal. The matters submitted to the Court of Appeal did not disclose any questions involving an error of law only. The Court was offered no explanation for the delay in making the application to the Court of Appeal. The President of the Court of Appeal was justified in dismissing the appeal summarily, although it would have been of assistance to both Mr Tuilaselase and this Court had there been some explanation given for the orders which were made.
    
18. In the event, having regard to the proposed grounds upon which Mr Tuilaselase would seek to appeal against the decision of the Court of Appeal, no ground was made out which satisfies the criteria for the grant of special leave under s 7(2) of the Supreme Court Act. It will be a rare case in which a sentencing disposition will attract the grant of special leave in this Court.
    
19. The petition will therefore be dismissed.
    

Hon Justice Keith Mason
Judge of the Supreme Court

Hon Justice Robert French
Judge of the Supreme Court

Hon Justice Mark Weinberg
Judge of the Supreme Court

Solicitors:
Petitioner in Person
Office of the Director of Public Prosecutions, Suva for the Respondent