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Chand v State [2015] FJCA 37; AAU0063.2012 (11 March 2015)

IN THE COURT OF APPEAL
[On Appeal from the High Court]

CRIMINAL APPEAL NO. AAU0063 OF 2012
[High Court Case No. HAC 049/12]

BETWEEN:

ASHWIN CHAND
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Appellant in Person
Mr. M. Delaney for the Respondent

Date of Hearing : 12 May 2014
Date of Ruling : 11 March 2015

RULING

[1] The appellant was charged with causing a disturbance in the course of a judicial proceeding and act with intent to cause grievous harm. The charges arose when the appellant was tried for murder in an unrelated case. During the proceeding, the appellant threw a fragmented concrete at the trial judge. Fortunately, the trial judge managed to avoid the object from hitting him. The impact of the throw left a dent within the wooden panel of the wall immediately behind the trial judge's head. Before throwing the object, the appellant hurled remarks "you are not giving me justice. This will stop the case". The murder trial proceeded and was concluded. The appellant was convicted and sentenced to life imprisonment.

[2] Subsequently, the appellant was charged with the offences in the present case. After numerous adjournments, he pleaded guilty to the charges before another judge. He was sentenced to 8 weeks for causing disturbance and 5 years imprisonment for act with intent to cause grievous harm. The two terms were made concurrent, but consecutive to his life imprisonment for murder.

[3] The appellant filed a timely appeal against his conviction and sentence.

[4] The appellant's first ground is that he pleaded guilty by mistake. When the appellant was arraigned in the Magistrates' Court, he was advised of his right to counsel. According to the court record, he waived his right to counsel and elected to represent himself. The court record also shows that the decision to plead guilty to the charges was made after the appellant decided not to proceed with an application for recusal against the trial judge. There is nothing in the court record to suggest that the appellant pleaded guilty by mistake. This ground is not arguable.

[5] The second ground alleges that the charge of act with intent was defective because he was not caution interviewed for that allegation. The discretion to charge an accused with an offence lies with the Director of Public Prosecutions. The courts lack jurisdiction to question that discretion exercised in good faith. This ground is not arguable.

[6] Ground three alleges that the sentencing judge failed to consider that there was no injuries caused to the victim. The appellant was charged with an attempt to strike pursuant to section 255(b) of the Crimes Decree 2009. The lack of injuries to the victim was an irrelevant consideration. This ground is not arguable.

[7] Ground four alleges that the facts did not support the charges. The facts tendered by the prosecution and admitted by the appellant clearly supported the charges. This ground is not arguable.

[8] Ground five alleges that the trial judge should not have accepted the guilty plea without advising the appellant to seek independent legal advice. The appellant had waived his right to counsel. There was no further obligation on the trial judge to advise him of his right to seek legal advice before he pleaded guilty. This ground is not arguable.

[9] Ground six alleges that the trial judge incorrectly considered that the appellant made a confession under caution. The State concedes that the appellant did not confess to the offence under caution, but says that the error did not affect the legality of the conviction. I agree. The appellant was convicted on the basis of his guilty plea and not on the basis of his caution interview. Rather the appellant benefitted from the error because the trial judge mistakenly took into account as a mitigating factor that the appellant cooperated with the police by confessing to the crime. This ground is not arguable.

[10] Ground seven alleges that the appellant was not formally charged with the offences of causing disturbance and act with intent to cause grievous harm. The charges were brought by the Director of Public Prosecutions. There is no requirement that an accused has to be formally charged by the Police. In the present case, the formal charges were filed by the Director of Public Prosecutions. This ground is not arguable.

[11] Three grounds have been advanced against sentence.

[12] The first ground alleges that the trial judge used the appellant's previous convictions as an aggravating factor to enhance his sentence. According to paragraph [12] of the sentencing remarks, the appellant's previous convictions were one of the aggravating factors. The use of previous convictions as an aggravating factor to enhance the sentence is not permissible. This ground is arguable.

[13] The second ground alleges that the trial judge erred in ordering his present sentence consecutive to his life imprisonment for murder. The trial judge considered the attempted attack on a judicial officer during the course of a proceeding was a serious matter. For this reason the appellant's sentence was made consecutive to his life imprisonment. The question whether to impose a consecutive sentence requires consideration of the totality principle i.e. whether the total sentence reflects the criminality involved and is not excessive. The trial judge did not consider this principle when he made the appellant's present sentence consecutive to his life imprisonment. This ground is arguable.

[14] The third ground alleges that the combination of the alleged errors under grounds one and two had resulted in an excessive sentence for the appellant. This ground is arguable.

Result
[15] Leave to appeal against conviction is refused. I am further satisfied that the appeal against conviction cannot possibly succeed and is therefore frivolous. The appeal against conviction is dismissed under section 35(2) of the Court of Appeal Act.

[16] Leave to appeal against sentence is granted. The appellant seeks bail pending appeal. The appellant is serving life imprisonment for a murder conviction in another case. The application for bail in this case is misconceived. Bail is refused.

....................................
Hon. Mr. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Appellant in Person
Office of the Director of Public Prosecutions for State