Waqanivalu v State [2008] FJSC 44; CAV0005.2007 (27 February 2008)

IN THE SUPREME COURT, FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV 0005 OF 2007
(Fiji Court of Criminal Appeal CAV0005 of 2007)

BETWEEN:

WAISALE WAQANIVALU
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice, Robert French, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice Mark Weinberg, Judge of the Supreme Court

Hearing: Thursday, 21st February 2008, Suva

Counsel: Petitioner in Person
A Prasad the Respondent

Date of Judgment: Wednesday, 27th February 2008, Suva

JUDGMENT OF THE COURT

1. On 22 February 2005 the petitioner pleaded guilty before Govind J in the Court at Lautoka toka to five counts of murder, and one count of attempted murder. The crimes were committed sometime between 6 and 7 March 2003, and on the ev of 8 December 2003. In each cas the method was the sthe same. The victims were young lovers who had gone to a remote spot to be alone together. The petitioner, looking for something to steal, crept up upon them, surprised them, and then repeatedly bashed them with a heavy stone or iron bar.
   
2. On 12 December 2003, acting on information received, the police went to the petitioner’s home. He was taken to the police station at Ba. There, according to the police, he confessed to having murdered two young men and two young women during the night of 8 December 2003. On 15mber 20er 2003 the petitioner was interviewed in relation to both the murder, and the attempted murder committed in March of that year. According to the police, he also confessed to those crimes.
   
3. On 24 February 2005 the petitioner was sentenced to five terms of life imprisonment in relation to the counts of murder, and to ten years’ imprisonment on the count of attempted murder. The sentences were all to be served concurrently. At the invitation of the State, Govind J exed the Court’s po;s power under s 33 of the Penal Co> and recommended that the petitioner not be released until he had spent nineteen in prison. The sentences in relation to these counts were were to be served consecutively with a sentence of ten years imprisonment which the petitioner was already serving for unrelated offences, namely robbery with violence and assault with intent to cause grievous bodily harm.
   

The proceedings before the Court of Appeal

4. Notwithstanding that had he pleaded guilty to all six counts, the petitioner sought leave to appeal to the Court of Appeal against his convictions, as well as his sentence. On 16 January 2006 he apd before fore the President of the Court of Appeal. He was granted leave to appeal against sentence. However, he was refused lea appeal against conviction.
   
5. The petitioner renewed his application for leave to appeal against conviction before the Court of Appeal, pursuant to s 35(3) o Court of Appe Appeal Act. He argued that he had only pleaded guilty because his lawyer had declined to carry out nstructions, and challenge the admissibility of his confessional statements. He maintained ined that he had insisted to his lawyer that those confessions were involuntary. Indeed, he claimed that she had pressured him into pleading guilty, against his will
   
6. The Court of Appeal referred to extracts from the High Court record which indicated that after the petitioner had entered pleas of guilty in relation to the four counts of murder committed in December 2003, a summary of the facts was read out to him, and accepted as accurate. According to the record, he had acknowledged that he understood each count, and in particular the nature and gravity of each charge. He had also acknowledged that he had pleaded guilty of his own accord, and that he understood the facts as tendered. He had agreed that those facts had been accurately stated.
   
7. The Court of Appeal next referred to extracts from the High Court record relating to the count of murder, and the count of attempted murder, which occurred in March 2003. The record indicated that the petitioner accepted that, although he had initially pleaded not guilty to those two counts, he had changed his mind after speaking to his counsel, and elected to plead guilty. The record specifically stated that he acknowledged that no pressure had been put on him to plead guilty.
   
8. The Court of Appeal also noted that the petitioner had appeared before the High Court on many occasions throughout 2004 before he ultimately pleaded guilty to the charges in February 2005. In the course of those appearances, he had been represented by a number of different counsel. At no stage had he complained of having been mistreated by the police. Nor had he intimated that the confessions made by him should be rejected.
   
9. Before the Court of Appeal, the petitioner appeared to vacillate as what course he wished to follow. At one stage, he intimated that he desired to abandon his appeal against conviction. Later he resiled from that position. He then sought to present argument against his conviction.
   
10. Bearing in mind that he was not represented, the Court of Appeal treated the petitioner as though he at all times sought to press the grounds of appeal against conviction, as originally advanced. Their Lordships stated that they could find no merit in any of the grounds which, in any event, raised no matters of law for their consideration. Accordingly, leave to appeal against conviction was refused.
    
11. As to sentence, the Court of Appeal dealt with this briefly. Their Lordships noted that s 200 of the Penal Code provides that murder carries a mandatory life term. A sentence of ten years imprisonment for attempted murder (which itself carries a maximum sentence of life imprisonment) for an offench as that committed by this this petitioner could hardly be regarded as excessive.
    
12. In addition, the Court of Appeal held that there could be no objection to the sentences for murder and attempted murder being ordered to be served consecutively with the sentence of ten years imprisonment that the petitioner was already serving.
    
13. The only remaining question, so far as the Court of Appeal was concerned, was whether the recommended minimum term of nineteen years was excessive. The petitioner argued that a person convicted of murder would normally expect to serve no more than about fourteen years before being released on licence. He argued that a recommended minimum term of nineteen years had to be seen as excessive.
    
14. The Court of Appeal rejected that last submission as misconceived. A sentence of life imprisonment meant exact what it said - imprisonment for life. Although there was a practice of releasing persons serving life sentences on licence, certainly well before they died, such release was not automatic. It would depend upon all of the circumstances, including the nature of the offence, and the danger which the accused might pose to the community if released.
    
15. The Court of Appeal noted that Govind J had described these kil angs as "the most gruesome, brutal, callous and wanton killings that have ever come before me". Indeed, the prosecution had invited his Lordship to treat them rial killings, and submitted that a recommended minimum term term of thirty years should be fixed.
    
16. Before Govind J, counsel fo petitioner suer submitted that a thirty year minimum would be excessive. She submitted that the petitioner had shown genuine remorse by pleading guilty, and there had a considerable saving of Court time as a result. Sht. She submitted that any minimum term should not exceed twenty years, a submission that Govind J ultly accepted. She also also submitted that any sentences imposed in relation to these counts should be wholly concurrent with the term that the petitioner was already serving. Govind J rejected submission.
    
    
17. The Court of Appeal concluded that it was cleom the petitioner’s criminal history, and from the aphe appalling nature of these crimes, that he was a highly dangerous individual. In their Lordships view, the nineteen year period recommended by the trial judge was entirely appropriate.
    

The application for special leave to appeal

18. Before this Court, the petitioner seeks special leave to appeal against both conviction and sentence. In relation to his appeal against conviction, he relies upon the same four grounds that were argued before the Court of Appeal, and seeks a retrial. In relation to his appeal against sentence, he relies upon the same grounds as were argued below, but has added a number of additional submissions.
    
19. Dealing firstly with the application relating to conviction, the petitioner argues that he was "enticed" by his counsel to change his plea from not guilty to guilty. That submission is devoid of merit. The petitioner pleaded guilty before the High Court. The record of that Court indicates that when he did so he understood full well the consequences of such a plea. The record also indicates that he acknowledged having confessed to all these charges, and was pleading guilty of his own free will.
    
20. In his written submissions, the petitioner also argues that his trial miscarried because it ought to have begun immediately after he first pleaded not guilty to these offences, on 4 May 20e contends that the fthe failure to accord him a speedy trial, as required under the Fiji Constitution, brought about the pressure that was later placed upon him by his own counsel, and caused him, against his will, to plead guilty. In that regard, the petitioner invokes ss 27 and 28 of iji Constitutiitution. He also asserts that his confessional statements were involuntary, and untrue.
    
21. There is no basis for anyr any of these submissions. Special leave to appeal against conviction should be refused.
    
22. With regard to sentence, the petitioner submits that he now faces a minimum of nineteen years on the five counts of murder, together with a further ten years on the count of attempted murder. He is plainly wrong about that. The ten years on the count of attempted murder was made concurrent with the sentences imposed on the five counts of murder. It is concurrent, therefore, with the recommended term of nineteen years.
    
23. The petitioner next complains of having to serve all of his sentences in relation to the five murders and the attempted murder consecutively with the term of ten years previously imposed in respect of the unrelated offences of robbery with violence and assault with intent. For reasons that are not apparent, he calculates that, as a result of the sentences imposed by Govind J, he mus serve a total of l of forty-nine years before being eligible to be released. Once again, he is wrong about that. The actual figure is nineteen years plus the tars imposed for the unrelated offences, less a third for reor remissions on those unrelated offences. In effect, the petitioner will have to serve something of the order of just under twenty-six years.
    
24. The petitioner next challenges the recommendation that he serve a minimum of nineteen years (which was altered to a fixed term of nineteen years by the Court of Appeal). He submits that a fixed term of nineteen years exceeds the maximum lawful term that can be imposed. He relies upon s 12(2) (a)C>Criminal Procedure Code which he contends limits the sentence for maximum term which can be imposed for any offence which carries life imnment to fourteen years.
    
25. The petitioner’s submission is misconceived. Section 12 of the Criminal Procedure Code is in the following terms:
    

"Sentence in cases of conviction of several offences at one trial

12.-(1) When a person is convicted at one trial of two or more distinct offences the court may sentence him, for such offences, to the several punishments prescribed therefor which such court is competent to impose; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the court may direct, unless the court directs that such punishments shall run concurrently.

(2) In the case of consecutive sentences it shall not be necessary for the court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to impose on conviction of a single offence, to send the offender for trial before a higher court;

Provided as follows:-

(a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years; and

(b) if the case is tried by a magistrates' court the aggregate punishment shall not exceed twice the amount of punishment which the court is, in the exercise of its ordinary jurisdiction, competent to impose.

(3) For the purposes of appeal or confirmation the aggregate of consecutive sentences imposed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence."

26. It is clear that s 12(2) (a) is direcolely at y at the powers of the Magistrates Court. It deals with consecutive sentences for multiple offences and the circumstances under which a Magistrate can aggregate such sentences. It puts no constraint upon the sentencing powers available to a judge of the High Court.
    
27. The petitioner then argues that the sentences which Govind J imposed shouldhave been meen made consecutive with the sentence of ten years he was already serving. The answer to that submission is plain. Section 28(4) of the PCode> provides that sentences for different offencesences that are imposed when conviction occurs separately are to be served cutively unless by directing concurrency or partial concurrency the Court otherwise orders.ders.
    
28. In Waqasaqa v The State (CAV0009 of 2005S) the Court of Appeal observed that there should be no automatic resort to concurrency when sentences are imposed for separate offences. Indeed, in that case the Court went further and stated that entire concurrency needed reasoned justification lest the effective punishment for one offence was rendered nugatory by reason of the prisoner serving it entirely while serving the sentence imposed for a separate offence.
    
29. The Court of Appeal did not err when, in the present case, it followed these principles.
    
30. The petitioner next argues that a sentence of life imprisonment, being of necessity indeterminate, contravenes both ss 25 and 38 of the Constitutiitution. Section 25 pes for freedom from crum cruel, inhumane, degrading or disproportionately severe treatment or punishment. Section 38 provides foality before fore the and sates that a persoperson must not be discriminated against onst on various specified grounds.
    
31. Under tder the Penal Code there are many offences that carry a maximum term of life imprisonment. In each case the formula used is that a person who commits the relevant offence "is liable to" imprisonment for life. The formula used in relation to murder is different. Section 200 provihat any person conn convicted of murder "shall be sentenced to imprisonment for life". In other words, the legislature has determined that life imprisonment is tory for murder.
    
32. Any sentence of life imprisonment, whether it be the maximum sentence that can be imposed, or whether it be the mandatory sentence for a particular crime, is indeterminate. The fact that a sentence is indeterminate does not, however, establish that it is cruel, inhumane, degrading, or disproportionately severe.
    
33. Plainly, there is no basis for the petitioner’s argument that those persons who are sentenced to life imprisonment for murder have been discriminated against in breach of s 38 of the Fiji Constitutior.
    
34. Finally the petitioner also seeks to invoke what is often dbed as the "one transaction" principle. That principle has has no application in this case. The crimes committed in March, and December, though plainly carried out for similar motives, are not relevantly part of the one transaction. In any event, the sentences imposed for these crimes all run concurrently.
    
35. The application for special leave against sentence will also be refused.
    
36. The petition is dismissed
    

Hon Justice Robert French
Judge of the Supreme Court

Hon Justice Kenneth Handley
Judge of the Supreme Court

Hon Justice Mark Weinberg
Judge of the Supreme Court

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