Timo v State [2019] FJSC 1; CAV0022.2018 (25 April 2019)

IN THE SUPREME COURT OF FIJI
[CRIMINAL APPELLATE JURISDICTION]

CRIMINAL PETITION Nos: CAV 0022 & CAV 0026 of 2018
[On Appeal from Court of Appeal Nos: AAU 0088 & AAU 0093 of 2014]

BETWEEN:

1. NACANI TIMO

2. DAVID LOCKINGTON

Petitioners

AND:

THE STATE
Respondent

Coram : Hon. Mr. Justice Brian Keith, Judge of the Supreme Court
Hon. Mr. Justice Priyasath Dep, Judge of the Supreme Court Hon. Mr. Justice Frederick Brand, Judge of the Supreme Court

Counsel: The First Petitioner appeared in person
Mr. M. Fesaitu for the Second Petitioner
Mr. L. J. Burney with Ms. S. Kiran for the Respondent

Date of Hearing: 11 April 2019

Date of Judgment: 25 April 2019

JUDGMENT

Keith J:

Introduction

1. When a defendant comes to court charged with a criminal offence, he has to decide how to plead: guilty or not guilty. If he pleads not guilty, a full trial has to take place. Witnesses are called, speeches are made and the judge sums up. By this process, a verdict is arrived at. But if the defendant pleads guilty, a trial does not take place. Guilt having been established by the confession of guilt which the plea of guilty represents, all that remains for the court to decide is what the sentence to be passed on the defendant should be.

2. So if a plea of guilty represents a confession of guilt, are there any circumstances in which a defendant can appeal against his conviction when he has pleaded guilty? The answer is that there are, but they are very limited. This appeal concerns, amongst other things, one such circumstance. The applicants are Nacani Timo and David Lockington. I intend no discourtesy to them if from now on I refer to them by their surnames for convenience. They were charged with aggravated robbery contrary to section 311(1)(a) of the Crimes Decree. A third man, Sunia Roraqio, faced the same charge. They were tried in the High Court at Lautoka by De Silva J and three assessors. They had all pleaded not guilty at a pre-trial hearing. In the course of the trial, Timo changed his plea to guilty, and the trial continued against Lockington and Roraqio. The assessors expressed the opinion that Roraqio was not guilty, but that Lockington was guilty. The judge agreed: he acquitted Roraqio and convicted Lockington. In due course, Timo was sentenced to 12 years’ and 1 month’s imprisonment (reduced from 13 years’ imprisonment to reflect the 11 months during which he had been in custody on remand) with a non-parole period of 11 years and 6 months. Lockington was sentenced to 13 years’ imprisonment with a non-parole period of 12 years. Timo now applies, despite his change of plea to guilty, for leave to appeal against his conviction, as well as against his sentence. Lockington applies for leave to appeal against his conviction.

Extension of time

3. Timo’s petition for leave to appeal was lodged in time. Lockington’s was not. Instead, a summons was issued on his behalf by the Legal Aid Commission seeking an extension of time for lodging his petition, supported by an affidavit from Lockington explaining the reasons for the delay and exhibiting the proposed petition. The proposed petition did not give any information about the basis on which leave to appeal was sought. It merely said that the verdict was unreasonable. Since one of the factors to be taken into account in deciding whether to grant an extension of time to lodge a petition for leave to appeal is whether there is a ground of appeal which will probably succeed, that was hardly helpful.

4. As it is, Lockington said in his affidavit that his counsel had told him that in view of his other commitments the need to lodge Lockington’s petition had slipped his mind. When it was appreciated that the time for lodging the petition had passed, there was a further delay since the approval of the prison authorities is required before a legal visit can take place. Even then it will often be a week or so before such a visit can be arranged, and since Lockington’s affidavit explaining what had happened had to be sworn before a commissioner for oaths, there was further delay before that could be arranged. I have no reason to doubt any of that, especially as it has been confirmed to us by Lockington’s counsel. Moreover, we note that the summons seeking an extension of time was filed only 22 days after the time for lodging the petition had expired. In the circumstances, I would extend Lockington’s time for lodging his petition.
   

The evidence

5. Shortly after midnight on 18 July 2013, the owner of a house in Lautoka was woken up when the alarm went off. He got up to see what the problem was. He saw four masked men outside. One of them threw a stone breaking a window. All four men then entered the house through it. They grabbed the householder, dragged him into the bedroom and pinned him to the bed. Having demanded money from him, they searched the house and took jewellery, watches, mobile phones, bags, alcohol and cash in various currencies. Their total haul, once the cash had been converted into Fijian dollars, came to $159,483.36. Someone had hold of the householder the whole time which lasted about 10 minutes. They left when the householder assured them that this was all he had. He was not able to identify any of the men.
   
6. The evidence which implicated Timo and Lockington in this robbery came from different sources. First, there were three witnesses who gave evidence about seeing Timo and Lockington shortly after the robbery. Pita Sorovakarua said that at about 1.30 am on the morning in question (ie within an hour of the robbery) Timo had come to his home asking for transport. He was with others but Sorovakarua could not see who they were as they were in the shadows. Sorovakarua could not help, but Timo returned later that morning with Lockington. The three of them went to Lockington’s cousin, Rupeni Suguturaga who was known as Ben, where they collected him and his van, and the four of them drove around for much of the day and that evening, picking up another of Lockington’s cousins, Laisala Navunisinu, meeting other people and spending much of their time drinking. There had been talk of exchanging foreign currency, though Sorovakarua did not know whether anyone exchanged any foreign currency. Before they parted in the early hours of the following morning, Timo gave Sorovakarua 50 Australian dollars and he was also given Hong Kong dollars. Both Australian and Hong Kong dollars had been among the currencies stolen in the robbery.
   

7. The other two witnesses who gave evidence about seeing Timo and Lockington on the day following the robbery were Lockington’s cousins, Ben and Laisala. Ben said that Lockington, Timo and a third man (presumably Sorovakarua) had come to his home that morning. They all then went off in his van, and spent the day together. Lockington gave him $50 for fuel, and Timo $100. At one stage Timo gave him and Laisala two 50 Euro notes to change, and Ben and the other man (presumably Sorovakarua again) exchanged it for Fijian dollars at the Western Union in Rakiraki. Euros had also been stolen in the robbery. For his part, Laisala said that Lockington had given him 50 Australian dollars at some stage that day to buy drinks with.

8. The other evidence implicating Timo and Lockington in the robbery came from police officers. Their evidence was that, as a result of information received, they went on the day after the robbery to an address in Kinoya. Timo and Lockington were there. Lockington made a run for it, but was caught. He was taken back to the address, and once there he surrendered various items to the police including a Rolex watch and an Apple iPhone. He was taken to Nabua Police Station where he signed the list of the items which he had surrendered. The Rolex watch and the iPhone were subsequently identified by the householder as his. Although he was interviewed about how he came to have these items, the prosecution eventually chose not to rely on this interview, and it did not feature again in the case.

9. Timo was arrested at his home on 22 July 2013. Among the items retrieved from him were a Nokia mobile phone and a Digicel blackberry. He was taken to Nabua Police Station where he was interviewed under caution. In that interview, which was reduced into writing by one of the police officers and signed by Timo, Timo admitted having taken part in the robbery. He said that the robbery had been his idea, but that the plan had only been hatched that evening when Lockington had said that they wanted to get some money. They used pliers to cut the fence around the compound in which the householder lived, and Timo talked, among other things, about his share of what had been taken. When he was charged on 24 July 2013 with the offence of aggravated robbery, he signed a document admitting to his involvement in the offence. The Nokia mobile phone and the Digicel blackberry were subsequently identified by the householder as his: he was able to do that from emails, messages and images on them.
   
10. Timo contested the admissibility of the record of his interview in a voir dire. His case in the voir dire was that he had been beaten up by the police when he was arrested. The beatings continued at Nabua Police Station with hosepipes and batons and then at Lautoka Police Station to which he had then been taken. The following day he was told that he had to make a statement, presumably one in which he confessed to his involvement in the robbery. He was told that if he did not he would be beaten again. Eventually he agreed to make a statement, but when he asked in the course of it to go to the toilet and for some water, he was told that there would be no break until he confessed to his involvement in the robbery. That was why he signed what purported to be the record of what he was supposed to have said in the interview. And when he was charged, the police officer who charged him punched him in the face. Although he did not say so in so many words, his case presumably was that he signed the document following being charged because he feared that the beatings would continue if he did not. He relied on medical evidence which showed that an examination of him on the day after he had been charged had revealed a fracture of the nasal bone, swelling on the nasal bridge and bruising on his head and forehead, all of which was consistent with the account he had given. As for the Nokia mobile phone, he told the judge at the end of the householder’s evidence that the Nokia mobile phone was his.
    
11. Lockington’s case at trial was that he had not been involved in the robbery. He did not say where he had been at the time of the robbery, but he said that he was at his “cousin sister’s” home on the morning following the robbery. At about 6.00 am she woke him and asked him to buy some groceries. While he was out doing that he met Timo, and they spent the rest of the day together with his cousins, Ben and Laisala. At one stage Timo gave him some foreign currency which he gave to Laisala. He claimed that when he was arrested, the police officers began to beat him up which was why he ran off. It had had nothing to do with any involvement on his part in the robbery. And he claimed that the police beat him up again at the police station, and that he only signed the list of items he had supposedly surrendered to the police because he had been told that the beatings would continue until he signed it.
    

The course of the trial

12. Timo was not legally represented at the trial, though Lockington was. The trial began with the voir dire to determine the admissibility of what Timo and Lockington were alleged to have said in the course of their interviews. In the course of that voir dire, the prosecution said that they were not going to rely on Lockington’s interviews, and the voir dire continued in respect only of Timo’s interviews. The judge ruled the interviews admissible, and the trial proper then started in the presence of the assessors. The first two witnesses were the householder and Ben. As I have said, Ben’s evidence implicated Timo because it confirmed that Timo had spent the day following the robbery with Lockington, and at one stage Timo had given him and Laisala two 50 Euro notes to change, Euros having been stolen in the robbery. It was at that stage that Timo changed his plea to guilty.

13. The trial then continued against Lockington and Roraqio. The prosecution called a number of other witnesses, and both Lockington and Roraqio elected to give evidence themselves. In due course, Roraqio was acquitted but Lockington was convicted. Lockington’s application for leave to appeal against his conviction raises one single issue, and I propose to address that first.

Lockington’s appeal against conviction

14. In the Court of Appeal, it was argued on Lockington’s behalf that his conviction should be quashed as it was inconsistent with the acquittal of Roraqio. That contention is no longer advanced. The sole ground of appeal is that there was insufficient evidence to warrant Lockington’s conviction. The prosecution point out that that should have led the defence to submit to the trial judge at the conclusion of the prosecution’s case that Lockington had no case to answer. That is true, but if it is indeed the case that the evidence was insufficient to warrant Lockington’s conviction, the fact that his counsel at trial failed to argue that is neither here nor there.

15. The argument advanced by Mr Michael Fesaitu for Lockington is that the case against Lockington was entirely circumstantial. He does not take issue with the trial judge’s explanation of circumstantial evidence in his summing up to the assessors, but he contends that the circumstantial evidence here was not such as to enable the judge to be sure that Lockington’s guilt was the only realistic inference to be drawn from the proved or admitted facts.
    

16. I have already summarised the evidence which implicated Lockington in the robbery. First, there is the evidence that Lockington spent the day following the robbery with Timo. For that to be significant evidence in Lockington’s case, there had to have been admissible evidence in Lockington’s case that Timo was one of the robbers. Neither Timo’s confession to the police nor his subsequent plea of guilty were evidence in Lockington’s case, but the fact that Timo had foreign currency including Euros, Hong Kong dollars and Australian dollars (all of which had been taken in the robbery) was at least some evidence on which Timo’s involvement in the robbery could be inferred. Having said that, the crucial evidence against Lockington was his possession on the day following the robbery of items which either could have come from the robbery or unquestionably did come from it. What could have come from the robbery was the 50 Australian dollars which Laisala said Lockington gave him that day to buy drinks with. What unquestionably did come from the robbery were the Rolex watch and the Apple iPhone which Lockington surrendered to police officers at the address at which he was arrested and which were subsequently identified by the victim of the robbery as his. And one might add to that the fact that Lockington made a run for it when the police turned up at the address where he was.

17. Lockington had an explanation for all this. The Australian dollars he gave to Laisala came from Timo. He ran away from the police as they were beating him up. And he never surrendered the watch and the iPhone to the police. The police were lying about that, and he only signed a document saying that he had surrendered them to avoid further assaults on him. But it was for the judge to decide where the truth lay, and we know from his judgment that he disbelieved Lockington’s account about the watch and the iPhone. Indeed, this was a classic example of the application of that strand of circumstantial evidence commonly called “recent possession”. In cases where a defendant is found to have been in possession of property which has been stolen very recently, so that it can be said that he was in recent possession of it such that it plainly calls for an explanation from him about how he came to be in possession of it, and either no explanation is given, or such explanation as is given is untrue, the court is entitled to infer, looking at all the relevant circumstances, that the defendant stole the property in question or was a party to its theft. And if the property had been stolen in a burglary or a robbery, the court is entitled to infer, again looking at all the relevant circumstances, that the defendant took part in the burglary or the robbery in which the property was stolen: see, for example, Blackstone’s Criminal Practice 2016, paras F.63-F.64, and applied in Fiji in Wainiqolo v The State [2006] FJCA 49 and Rokodreu v The State [2018] FJCA 209. The relevant circumstances included the fact that he had spent the day following the robbery using foreign currency in the company of, and drinking with, a man against whom there was some evidence of involvement in the robbery.

18. In summary, then, the incriminating features of Lockington’s behaviour on the day following the robbery were (a) accompanying Timo all day, (b) giving 50 Australian dollars to Laisala, (c) running off when the police came to arrest him, and (d) surrendering to the police items which had been stolen in the robbery. The judge rejected Lockington’s explanation for these incriminating features of his behaviour on the day in question. In particular, the judge rejected Lockington’s denial that the items had ever been in his possession. The upshot of that was that there was no explanation for how he had come to be in possession of them. In all the circumstances of the case, the judge was entitled to find that Lockington had indeed taken part in the robbery.
    

Timo’s appeal against conviction

19. Timo not only represented himself at the trial. He represented himself in the Court of Appeal and continues to represent himself in the Supreme Court. The very lengthy written submissions in support of his appeal have not been drafted as crisply as a lawyer would have drafted them. They are lengthy and at times difficult to understand.^[1] Some of the points he takes are obviously bad, and I propose to put them to one side, but there is one which is more substantial, and will need to be considered with some care. It relates to his change of plea to guilty.

Timo’s change of plea to guilty.

20. Although Timo contends that his plea of guilty was equivocal, that is not borne out by the judge’s note of what happened. It reads:
    

“[Timo] wants to change his plea. I am satisfied he is aware of consequences. Information read over to [Timo]. [Timo] pleads guilty to the charge. Summary of facts to be filed tomorrow.”

And the judge’s note for the next day reads:

“Summary of facts served to [Timo] at remand yesterday. At 11.00 am: [Timo] moved for more time to go through summary of facts. At 11.10 am: [Timo] agrees with summary of facts. [Timo] is convicted of the charge.”

There is no reason why we should not treat all this at face value. On that basis, Timo’s plea of guilty was not equivocal. On the contrary: it was clear, unambiguous, and tendered after he had had time to consider his position. Timo’s real case, as I understand it, is not that his plea of guilty was equivocal, but that the judge did not inquire sufficiently into whether his decision to plead guilty was voluntary and an informed one.

21. It is true that the judge did not ask Timo whether his change of plea was voluntary. But the judge did not have any reason to suppose that it might not be, and in the absence of anything to put the judge on notice that a plea of guilty might not be voluntary, there is no obligation on a judge to ask a defendant whether his plea of guilty is voluntary. The case relied on by Timo in this connection – Suren Singh and others v The State (2000) 2 FLR 127 – does not help. For present purposes, that case is only authority for the proposition that when an unrepresented defendant pleads guilty the judge has to be satisfied that the defendant understands the charge he is facing and that on the facts which the defendant is admitting the charge has been made out. Timo would have understood the charge he was facing from the information which was read out to him. And the judge would have been satisfied that on the facts which Timo was admitting the charge had been made out, because the summary of facts which were read to Timo and which he admitted included all the ingredients of the form of aggravated robbery with which he was charged.
    

22. In the circumstances, the critical question is why he changed his plea to guilty. He says that he decided to change his plea to guilty because of the adverse ruling in the voir dire. That is important, because although the Court of Appeal dismissed Timo’s appeal against his conviction, it held that the judge had been wrong to rule the interview inadmissible in the light of the medical evidence which was consistent with his account of how he had been treated. Although Timo’s case has not been formulated in precisely this way, it has to be that he pleaded guilty because he thought – wrongly as it turned out – that the judge’s ruling on the voir dire made his conviction was inevitable.

23. That was not how he originally put his case. In his grounds of appeal to the Court of Appeal, he wrote that he had pleaded guilty “due to State’s counsel false promise”. He did not say what that promise was, and when we asked him what it was, he told us that he could not recall. In an amended notice of appeal to the Court of Appeal, he referred to the “wrong assessment of the voir ruling”, but in the particular context in which that was written I do not think that he was saying that he changed his plea to guilty because of the adverse ruling in the voir dire. What he was saying was that the judge had been wrong to rule his interview admissible, ie he was making the judge’s ruling in the voir dire a free-standing ground of appeal (which the Court of Appeal agreed with) rather than suggesting that it was the reason why he had changed his plea to guilty.

24. Other reasons for changing his plea to guilty were advanced in his written submissions to the Court of Appeal. He said that the trial judge had “oppressed” him to change his plea. He did not say what that oppression was, and if the oppression had consisted of the judge’s ruling in the voir dire, why did he not say that? He also appeared to be saying that he had changed his plea to guilty because the Nokia mobile phone had been produced in evidence. He told us what he had told the judge – namely that the Nokia was his – and he added that it had in its “memory” photos of him. Timo was saying, I think, that the householder had been wrong to say that the phone had been his (ie the householder’s), and he was complaining that although the mobile was his, it had been returned by the police to the householder. But whatever he was saying, none of it was consistent with what he now says, namely that he changed his plea to guilty because of the adverse ruling in the voir dire.
    

25. The Court of Appeal thought that the time when Timo changed his plea to guilty was highly significant. He did not change it on the morning when the judge made the adverse ruling in the voir dire. Following that, the assessors were sworn in, counsel for the prosecution addressed the court in opening, and called his first witness who gave evidence about Roraqio’s whereabouts on the day in question. The case was then adjourned for the day because the householder was the next witness and he was unavailable that day. Timo did not tell the judge then that he wanted to change his plea to guilty. On the following morning, the householder gave evidence. The court then adjourned for lunch. Still Timo did not tell the judge anything about wanting to change his plea to guilty. After lunch, Ben gave evidence, and I have already explained how his evidence implicated Timo in the robbery. It was only after Ben had concluded his evidence and the assessors had been released for the day that Timo told the judge for the first time that he wanted to plead guilty. It was in these circumstances that the Court of Appeal concluded that “[t]he change of plea was not related to any admissions made in caution interview that had been ruled admissible”: para 10 of the judgment of Calanchini P.

26. I understand where the Court of Appeal was coming from, but it is nevertheless difficult to say that the ruling in the voir dire was not a factor in Timo’s decision to change his plea to guilty. Since that ruling was held by the Court of Appeal to have been wrong, the critical question is whether that affects Timo’s plea of guilty. The law here was comprehensively addressed by the Court of Appeal in England in Chalkley and Jeffries [1997] EWCA Crim 3416; [1998] 2 Cr App R 79, but it is necessary to put that case in its proper context. Before section 2(1) of the Criminal Appeal Act 1968 in England was amended in 1995, it provided that the Court of Appeal should allow an appeal, amongst other reasons, if there had been a material irregularity in the course of the trial, though the Court could nevertheless dismiss the appeal if it was satisfied that no miscarriage of justice had actually occurred. That formulation was virtually identical to the current test in Fiji (and the one in operation at the time of Timo’s trial) in section 23(2) of Fiji’s Court of Appeal Act 1949. Chalkley and Jeffries had to be decided under the new statutory test in England for determining an appeal against conviction. But in order to understand the impact of the new formulation, the court addressed what the position would have been under the old law, ie the law virtually identical to that currently in force in Fiji.
    
27. Auld LJ giving the judgment of the court said at p 89B-C:
    

“Section 2(1) in its old and new forms respectively entitled and entitle the Court of Appeal to quash as unsafe a conviction based on a plea of guilty where the plea was mistaken or without intention to admit the truth of the offence charged. In the case of the old form, it was commonly said ... that it might also do so where it was ‘founded upon’ a material irregularity or, as [counsel] submitted, an erroneous ruling on a point of law.”

He then went on to consider whether a plea of guilty following an erroneous ruling was “founded upon” a material irregularity. He said at p 91C-D:

“It is only where an erroneous ruling of law, coupled with the admitted facts, makes acquittal legally impossible that a plea of guilty can properly be said to have been ‘founded upon’ the ruling so as to enable a successful appeal against conviction. The fact that an erroneous ruling of law as to the admissibility of certain prosecution evidence drives a defendant to plead guilty because it makes the case against him factually overwhelming will not do. It does not make it impossible for him to maintain his innocence as a matter of law or of fact, it merely makes it harder.”

Or to use the language Auld LJ used later on in his judgment at p 94D-E when considering when a conviction would be unsafe under the new formulation of the statutory test:

“... a conviction would be unsafe where the effect of an incorrect ruling of law on admitted facts was to leave an accused with no escape from a verdict of guilty on those facts. But a conviction would not normally be unsafe where an accused is influenced to change his plea to guilty because he recognises that, as a result of a ruling to admit strong evidence against him, his case on the facts is hopeless. A change of plea to guilty in such circumstances would normally be regarded as an acknowledgment of the truth of the facts constituting the offence charged.”

Auld LJ added that they were qualifying these propositions with the word “normally” only because “there remains the basic rule that the Court should quash as unsafe a conviction where the plea was mistaken or without intention to admit the truth of the offence charged”.

28. In the present case, the ruling on the voir dire did not make Timo’s acquittal legally impossible. It just made his acquittal less likely – admittedly far less likely. I have not overlooked the fact that when sentencing Timo, the judge said that it was “evident that you pleaded guilty when you were in a no escape situation”. But the judge was not saying that he had no legal escape from conviction. The judge was only saying, to take up Auld LJ’s words, that his case on the facts was hopeless.
    

29. The case is like that of Greene [1997] Crim L R 659, admittedly decided under the new formulation of the statutory test, in which the defendant changed his plea to guilty following the judge’s ruling that evidence of a confession was admissible. His appeal against conviction was dismissed. Astill J giving the judgment of the court said:

“The crucial event was the change of plea to guilty. If a defendant submits that admitted facts do not in law amount to the offence charged and the trial judge rules otherwise, then it is not difficult to see how an appeal against conviction can lie after a plea of guilty. In those circumstances there remains no issue of fact for the jury to try. But where the admissibility of a confession is in issue and the trial judge rules that it should be admitted, as he did in this case, the truth of the contents of the confession, although having no relevance in the voire dire, remains a matter to be tried by the jury. A plea of guilty in those circumstances serves as an admission of the truth of the contents of the confession. It is not a plea entered where there is no remaining issue to be tried by the jury because it remains open to the defence to invite the jury not to rely on the truth of the confession despite the fact that, contrary to submissions, the trial judge ruled that it was admissible.”

30. It is true that in Fiji we have trial by a judge and assessors, rather than by a judge and a jury, and that the ultimate decision-maker is the judge who ruled the confession admissible. I accept that that makes it even less likely that Timo would be acquitted. But for the reasons given by Astill J, an acquittal was not legally impossible. It was open to Timo to have a rerun before the assessors of the issue over whether the confession had been beaten out of him, in the hope that the judge might change his mind. It was even open to him to say – as was suggested in Greene – that the confession was untrue (even though his claim in the voir dire that he had only signed the documents containing his confession because he feared that he would be beaten up further had been disbelieved), and to give such explanation as he could for the other incriminating evidence against him. But by changing his plea to guilty at a time when there was still at least a theoretical escape route to an acquittal, he was acknowledging the truth of the facts which constituted the charge he faced.^[2] That applies (a) even if the ruling in the voir dire was wrong^[3], and (b) even if, contrary to what the Court of Appeal thought, the ruling in the voir dire was a factor in Timo’s decision to change his plea to guilty.
    

31. Timo’s lack of legal representation. The Court of Appeal thought that Timo had “freely decided to represent himself”. Timo claims that that was wrong. He had applied for legal aid, but his application had been refused. There was nothing in the court record about that, and so we asked the Legal Aid Commission to check its records to see if Timo had ever applied for legal aid. We have been informed that having searched its archives, the Legal Aid Commission has found no record of any application by Timo for legal aid. It follows that there is no basis for any claim by Timo that the lack of legal representation amounted to a denial of his right to a fair trial.

Timo’s appeal against sentence

32. Timo’s petition sought leave to appeal against sentence as well as conviction. He advanced no submissions in support of that application, and as he is unrepresented, we have considered whether there is any ground worthy of consideration. The starting point which the judge took for the head sentence, before reflecting the time Timo had been in custody awaiting trial and sentence, was 13 years’ imprisonment. That was towards the top of the tariff at the time for aggravated robbery which was 8-14 years’ imprisonment: see, for example, The State v Manoa [2010] FJHC 409 which the trial judge cited in his sentencing remarks. The Court of Appeal referred to Wise v The State [2015] FJSC 7 in which the Supreme Court increased the tariff for aggravated robbery to 8-16 years’ imprisonment, but Wise was decided well after Timo’s offence – indeed well after he had been sentenced – and applying the new tariff to him would have offended the principle of non-retrospectivity.
    

33. Among the factors which the judge treated as aggravating features of this offence was that Timo had been on bail at the time of the offence and that this was group offending. The Court of Appeal took the view that the judge was in error in these two respects. I agree. There was nothing to suggest that Timo had been on bail at the time, and I cannot tell where the judge got that from. And it was the fact that this was group offending which made this an offence of aggravated robbery, as opposed to robbery, and so to treat the fact that this was group offending as an aggravating factor was double counting. The Court of Appeal did not think that these errors justified a reduction in sentence, but that may well have been because they wrongly had the higher tariff in Wise in mind.

34. The judge did not give Timo any credit for his change of plea to guilty. He declined to do so for two reasons. First, there were “the circumstances under which” Timo pleaded guilty. The judge had in mind the fact that after the ruling on the voir dire, Timo’s case was hopeless on the facts. I say that because the judge cited the decision of the Court of Appeal in Basa v The State [2006] FJCA 23, in which it was said that “little or no credit may be given if the evidence is so overwhelming that the accused has no real option but to plead guilty”. Secondly, there was the timing of Timo’s change of plea. The judge must have had in mind the fact that it came so late in the day that it did not even indicate that Timo had eventually had the courage to acknowledge his guilt. It was simply Timo’s belated acceptance of the inevitable. The Court of Appeal agreed with the trial judge. In many jurisdictions, pleas of guilty, even at a very late stage in the proceedings, are given a modest discount, and that is to encourage a change of plea to guilty even after the trial has started. It frees up the judge to take up another case in the meantime, and that has a knock-on effect on the waiting times for other cases. That does not apply to Fiji because we do not have a reserve list; if a trial goes short because of a late change of plea to guilty, there will not be other cases to fill the court’s time. In the circumstances, I am not prepared to say that the judge was in error in not giving even a modest discount for Timo’s late change of plea to guilty.
    
35. I turn finally to the only real issue of principle which the sentencing of Timo raises. It relates to the non-parole period. It was very close to the head sentence. There was a difference of only 7 months. Did the judge fall into legal error in imposing a non-parole period so close to the head sentence?
    
36. In Bogidrau v The State [2016] FJSC 5, the applicant was sentenced to 6 years’ and 6 months’ imprisonment with a non-parole period of 5 years. The Supreme Court explained the purpose of the court’s duty to fix a non-parole period in serious cases. It said at para 4:
    

“Section 18 of the Sentencing and Penalties Decree provides for the fixing of a non-parole period. Unless the nature of the offence or the past history of the offender makes the fixing of a non-parole period inappropriate, the court sentencing an offender to imprisonment for life or for a term of two years or more must fix a non-parole period during which the offender may not be released. The non-parole period was intended to be the minimum period which the offender would have to serve, so that the offender would not be released earlier than the court thought appropriate, whether on parole or by the operation of any practice relating to remission. At present there is no mechanism in place to enable prisoners to be released on parole: a parole board, or an equivalent body, has not yet been created. That means that the only route by which an offender can currently be released before the expiry of his head sentence is by the operation of the current practice relating to remission.”

That remains the position today.

37. But how long should the non-parole period be for? The Court went on to address that question in para 6 of its judgment in Bogidrau. It said:
    

“Section 18(4) of the Sentencing and Penalties Decree provided that a non-parole period had to be at least 6 months less than the head sentence, and a number of authorities have addressed how long the non-parole period should be, subject, of course, to that provision. Two principles can be identified:

(i) ‘[T]he non-parole period should not be so close to the head sentence as to deny or discourage the possibility of re-habilitation.^[4] Nor should the gap between the non-parole term and the head sentence be such as to be ineffective as a deterrent’; per Calanchini P in Tora v The State [2015] FJCA 20 at [2].

(ii) ‘[T]he sentencing Court minded to fix a minimum term of imprisonment [under the provision in the Penal Code equivalent to section 18] should not fix it at or less than two thirds of the primary sentence of the Court. It will be wholly ineffective if a minimum sentence finishes prior to the earliest release date if full remission of one third is earned. Experience shows that one third remission is earned in most cases of those sentenced to imprisonment’: Raogo v The State [2010] FJCA 13 at [24].”

38. The very small difference between the non-parole period and the head sentence in Timo’s case offends the first of these two principles. It was far too close to encourage good behaviour on Timo’s part while he was in prison. Subject to an important complicating factor which needs addressing, for a head sentence of 12 years’ and one month’s imprisonment, a more appropriate non-parole period would have been in the region of 10 years.
    
39. The complicating factor relates to how the Commissioner of Corrections calculates the remission of a prisoner who has a non-parole period fixed in his case. This issue was also addressed by the Supreme Court in Bogidrau. The Supreme Court first looked at how remission operated across the board. It said at [10]:
    

“Prisoners are classified when they enter the prison system. The classification is based on the date when they will be released. But how is that date to be calculated? Section 27(2) of the Prisons and Corrections Act 2006 provides the answer:

‘For the purposes of the initial classification a date of release for each prisoner shall be determined which shall be calculated on the basis of a remission of one-third of the sentence for any term of imprisonment exceeding one month.’

That is the only place, so far as I can tell, where remission of one-third of the sentence is mentioned. So remission of one-third of the sentence is not expressed as a right which prisoners enjoy. It is simply used as the basis on which to calculate what a prisoner’s release date is for the purposes of classification. As it is, the Commissioner’s practice is to remit the remainder of a prisoner’s sentence once the prisoner has served two-thirds of it, though that is dependent on how the prisoner has behaved in prison. As section 28(1) of the Prisons and Corrections Act provides:

‘The remission of sentence that is applied at the initial classification shall thereafter be dependent on the good behaviour of the prisoner, and it may be forfeited and then restored, in accordance with Commissioners Orders.’”

40. The problem arises when one comes to a prisoner who had a non-parole period fixed in his case. The Supreme Court highlighted the problem in Bogidrau. It said at [12]:
    

“One might expect that the Commissioner’s practice would have been to release the prisoner (provided that he has been of ‘good behaviour’) either once he has served two-thirds of his sentence or on the expiry of the non-parole period, whichever is the later. On that footing, Bogidrau would be released after he has served 5 years (subject to him having been of ‘good behaviour’). However, the Commissioner’s current practice is otherwise. The prisoner will only be released (provided that he has been of ‘good behaviour’) once he has served two-thirds of the difference between the head sentence and the non-parole period ... On that footing, even if Bogidrau is of ‘good behaviour’, he will not be released until he has served 6 years.”

The figures are even more stark in the present case. Although the head sentence in Timo’s case was 12 years and one month, Timo will have to serve, in view of the Commissioner’s practice, almost 11 years and 11 months before he can be released – though I recognise that this was partly the consequence of the non-parole period being so close to the head sentence. The effect of all this is that even if we were to substitute a non-parole period in this case of 10 years for the 11 years and 6 months fixed by the judge, Timo would not be released, on the basis of the Commissioner’s practice, until he has served almost 11 years and 5 months.

41. In Bogidrau – as well as in the similar case of Kean v The State [2015] FJSC 27 which preceded it – the Supreme Court did not regard it as appropriate for it to rewrite the Commissioner’s practice. As it said at [14]:
    

“If it is unfair for Bogidrau to serve 6 years rather than 5 before he is eligible for early release, that is not the consequence of the length of the non-parole period which was fixed in his case. It is the consequence of the Commissioner’s current methodology for calculating remission in such cases.”

That was why the court encouraged the Commissioner to review his practice. It said at [15]:

“If he maintains his current practice, a prisoner in Bogidrau’s position may well want to make an application for judicial review of the Commissioner’s practice to enable the court to pronounce on its legality. In that event, it would be desirable for the Legal Aid Commission to grant legal aid to any prisoner who wishes to pursue such an application.”

As far as we know, the Commissioner has not changed his practice. Nor do we know of any decision on any application for judicial review of the practice. In those circumstances, if the Commissioner’s practice is as questionable as the Supreme Court in Bogidrau thought it was, the only way to restore the policy objective behind the fixing of non-parole periods is by a reduction in what would otherwise be an appropriate non-parole period. The alternative approach would be to increase what would otherwise be an appropriate head sentence, but it would hardly be right for a judge to pass a sentence greater than one which was appropriate to accommodate what may be a flawed practice on the part of the Commissioner.

42. There is a powerful argument for saying that the Commissioner’s practice is indeed flawed. There are two problems at its core to which I have not been able to think of a satisfactory answer. The first is that it undermines the sentencing judge’s view of when the prisoner should be released. The non-parole period is intended to reflect the judge’s view of the length of time the prisoner should actually serve. Under the Commissioner’s practice, the prisoner is not released then. His release comes many months later. Secondly, it undermines one of the principles about the length of the non-parole period, namely that it should not be too close to the head sentence. The effect of the Commissioner’s practice is always to make the non-parole period very close to the head sentence. It follows that in order to ensure that these principles are not undermined, the courts should, in my opinion, now consider taking the initiative, and not shrink from reducing an otherwise appropriate non-parole period if that is what is required to achieve the policy objective which I have identified.

43. That is not a course which the courts should take lightly. It certainly should not do so without the benefit of considered submissions on behalf of the State. It would be doubly inappropriate to do that in a case in which the prisoner is unrepresented, and when the prisoner did not advance the argument himself. Timo will still have to serve a number of years in prison if his non-parole period is reduced, and that means that we can (a) give the Commissioner another opportunity to revisit his policy and (b) if he chooses to maintain it to enable the issue to be addressed at a session of the Supreme Court later this year. But matters should not be allowed to drift. The momentum should be maintained, not merely because Timo needs to know what his release date will be if he is of “good behaviour” while in prison, but also because the issue affects all prisoners who have had a non-parole period fixed in their cases.
    

Conclusion

44. For these reasons, I would grant Timo leave to appeal against both his conviction and sentence on the basis that the appeal against conviction involves a question of general legal importance, and that his appeal against sentence involves a substantial question of principle affecting the administration of criminal justice. In accordance with the Supreme Court’s usual practice, I would treat the hearing of the application for leave as the hearing of the appeal. I would dismiss Timo’s appeal against his conviction, but I would order that his appeal against sentence be adjourned to be reheard during a session of the Supreme Court later this year. Timo cannot be forced to have legal aid if he does not want it, but I would encourage him to apply for it, and for the Legal Aid Commission to grant it. As for Lockington, I would extend his time for lodging his petition by the 22 days necessary to validate it, but I would refuse him leave to appeal against his conviction. Of course, everything we have said about the non-parole period in Timo’s case would have applied with equal force to Lockington had he applied for leave to appeal against his sentence. I would encourage him to apply for an extension of time to do so. If he chooses to do so, his application for an extension of time to appeal against sentence, and for such leave if an extension of time is granted, can be heard at the same time as the adjourned hearing of Timo’s appeal.

Dep J:

45. I have read in draft the judgment of Keith J and I agree that the convictions against both Accused should be affirmed. As regards to the sentence, I agree with the action proposed by Keith J.
    

Brand J:

46. I have read in draft the judgment of Keith J, and I agree with it.

The Orders of the Court are:

Timo:

(1) Application for leave to appeal against conviction and sentence granted.
(2) Appeal against conviction dismissed.

(3) Appeal against sentence adjourned for further hearing at a later session of the Supreme Court in 2019.

Lockington:

(1) Application for an extension of time in which to lodge the petition granted.
(2) Application for leave to appeal against conviction refused.

Hon. Mr. Justice Brian Keith

Judge of the Supreme Court

Hon. Mr. Justice Priyasath Dep

Judge of the Supreme Court

Hon. Mr. Justice Frederick Brand

Judge of the Supreme Court

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^[1] They are in different handwriting from the handwriting in both Timo’s notice of appeal to the Court of Appeal and his written submissions to the Court of Appeal (which themselves are in different handwriting). Indeed, the handwriting in the written submissions to the Supreme Court looks like handwriting which I have seen in other cases. The suspicion has to be that there are prisoners who act as “lawyers” for other prisoners and draft legal documents for them. Having said that, there is nothing wrong with that, but it may explain why Timo had difficulty answering some of our questions about his written submissions. It may also explain why he chose to make no oral submissions to us. He simply said, in his response to a question from us, that he did not want to add anything to his written submissions.
^[2] Indeed, he continued to acknowledge his guilt in his written mitigation. He said that he was “very remorseful of his childish and selfish action”, he asked the householder to forgive him, and he said that he got involved in the robbery as a result of peer pressure.
^[3] It was contended on behalf of the State that the Court of Appeal was wrong to have concluded that the judge’s ruling in the voir dire had been wrong. In the light of the view I have taken of the effect of Chalkley and Jeffries, that is not a topic I need address.
^[4] I would have preferred to express the rationale for the non-parole period not to be too close to the head sentence as being that the shorter the gap, the less the prisoner’s incentive to conform to the prison regime.