Court of Appeal of Fiji

[10] In State v Samy [2019] FJSC 33; CAV0001.2012 (17 May 2019) the Supremepreme Court said:

‘[21] .............It is not for a court to inquire into the advice tendered by counsel to his client. The Respondent has not deposed in an affidavit, that is, on oath, as to wrongful advice given by his lawyer. In argument it was suggested there was pressure. But the court cannot substitute its own view of what it considers should have been the areas of questioning or advice to be given by a lawyer to his client.......’

[22] Where, as here, the defence counsel indicates to prosecuting counsel that his client will plead guilty, the defence will wish to see the summary of facts. If the facts are accepted by defence counsel’s client, the Accused, the plea can proceed. If not, the case must proceed on a not guilty plea and a trial must take place......’

[11] Earlier in Chand v State [2019] FJCA 254; AAU0078.2013 (28 November 2019) the Court of Appeal stated on the same matter that:

‘[26] The responsibility of pleading guilty or not guilty is that of the accused himself, but it is the clear duty of the defending counsel to assist him to make up his mind by putting forward the pros and cons of a plea, if need be in forceful language, so as to impress on the accused what the result of a particular course of conduct is likely to be (vide Hall [160;[1968] 2 Q.B. 52 Cr. ACr. App. R. 528, C.A.). In R. v. Turner ( 54 Cr.App.R.352, C.A., [1., [1970] 2 Q.B.321 it was held that the counsel must bpleteee to do his duty duty, that is, to give the accused the behe best advice he can and, if need be, in strong terms. Taylor LJ (as he then was) in Herbert Cain&#160[1976] QB 496).’

"It is true that a person may plead guilty upon grou grounds wnds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily thal only be whee where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have builty of the offence."<

[13] Assessed against the above principles of law relating to guilty pleas, the appellant’s position on equivocal plea of guilty become untenable. There is no material before this court to substantiate that the trial judge had stated in open court that he would impose a longer or consecutive sentence unless the appellant pleaded guilty and that his trial counsel had promised him a concurrent sentence with two other sentences the appellant was already serving, if he was to plead guilty. There is simply no material to buttress the appellant’s allegation that he was tricked or cheated by the trial judge or misled by the trial counsel. The appellant’s complaint seems to be an afterthought borne out of his disappointment of not getting a concurrent sentence.

[14] The Court of Appeal in Chand v State [2019] FJCA 254; AAU0078.2013 (28 November 2019) laid down judicial guidelines regarding the issue of criticism of trial counsel1b> in appeal and the procedure to be adopted when allegations of the conduct of the former counsel are made the bof grs of appeal. The appellant had not complied with those procedural steps and theretherefore fore this ground of appeal in so far as it criticises the trial counsel cannot be even entertained.

[15] Therefore, there is no reasonable prospect of success in this ground of appeal.

Sentence ground of appeal

[16] The gist of the appellant’s argument is that the trial judge had breached the totality principle in making the current sentence consecutive to the two other sentences he was serving.

[17] The relevant paragraphs in the sentencing order dealing with the previous sentences read as follows:

1. You are currently serving two sentences. The first sentence is a period of eight (8) years and nine (9) months imprisonment with six (6) years and nine (9) months of non-parole period, which was imposed on you on the 28th of March 2019 in respect of the HAC 117 of 2018. The second sentence is a period of nine (9) years imprisonment with seven (7) years non-parole period which was imposed on the 9th of May 2019 in respect of HAC 115 of 2018. You are presently serving both of these sentences concurrently. Moreover, the above two sentences were imposed on you in relation to the offences of Aggravated Robbery.
   
2. In HAC 117 of 2018, the Court found you guilty to the offence of Aggravated Robbery subsequent to the hearing. In that matter, you have assaulted and robbed a person with another accomplice when he was walking to his home along the road in the evening. In HAC 115 of 2018, you have pleaded guilty to the offence of Aggravated Robbery. In this matter, you have entered into a car wash with two other accomplices and assaulted the victims and then robbed therein. Accordingly, it is clear that the two sentences that you are presently serving are also involved with violent robberies.’
   

[18] Thus, it appears that the appellant was serving an imprisonment of 08 years and 09 months imposed on 28 March 2019 in HAC 117/2018 and another sentence of 09 years’ imprisonment imposed on 09 May 2019 in HAC 115/2018 when the trial judge had to sentence the appellant on 07 June 2019 in this case. There is no doubt that the appellant was serving both previous sentences concurrently. The trial judge has also recorded that the appellant had three more convictions against his name committed after the date of the offence in the information.

[19] The trial judge had acted under section 22 (1) of the Sentencing and Penalties Act in making the current sentence consecutive to the previous two concurrent sentences. There is no doubt that the trial judge had the discretion to do so (see Vaquwa v State [2016] FJSC 12; CAV0016 of 2015 (22 April 2016)]. The judge had considered the totality principle and observations thereon by the Court of Appeal in Tuibua v State [2008] FJCA 77; AAU0116 of 2007S (07 November 2008)] too.

[20] The trial judge had stated that the appellant committed the three offences within a period of just 07 months and all of them were violent robberies. The judge had also observed that if the current sentence was to be made concurrent to the two previous ones the total aggregate sentence would only be nearly 10 years for all three offences which ‘would undoubtedly be perceived by the public as a weak and lenient punishment for such a series of horrendous crimes committed on innocent citizen of the society’. He had further observed:

‘[29] One of the main purposes of the sentencing is to protect the public from the commissions of such crimes by making it clear to the offenders and to other persons with similar impulses, that, if you commit such a crime, you will meet with severe and appropriate punishment.......’

‘[30] [30] Therefore, a consecutive term of imprisonment would precisely reflect the proper proportionality between the gravity and seriousness ofoffence and the sentence. The accused is 26 years old and mand maximum penalty to the offence of aggravated robbery is twenty years imprisonment. Therefore, a consecutive sentence would not destruct any reasonable expectation of a useful life after release.’

[21] The appellant had submitted that the sentences imposed on his two previous cases were above the tariff applicable as one was a street mugging case and the other was an invasion of an office or business premises and he argues that the trial judge should have considered that aspect as well. The state submitted at the hearing that this court had already granted leave to appeal against sentence in AAU 33 of 2019 (HAC 117/2018) and AAU 75 of 2020 (HAC 115 of 2018) is to be mentioned on 19 October 2021. In any event, the trial judge had no authority to review those sentences as submitted by the appellant. Moreover even if the appropriate sentences in the previous cases happened to be more lenient that would not have affected the trial judge’s decision to make the current sentence consecutive, for with those two sentences as they were before him the trial judge still decided to make the current sentence consecutive to the earlier ones. However, it would be prudent for the full court to consider all three appeals (AAU 33 of 2019, AAU 75 of 2020 and AAU 78 of 2019) together in deciding the appropriate sentence to be imposed on the appellant.

[22] The appellant also argues that the decision by the trial judge to make the current sentence consecutive would effectively leave him with a total aggregate sentence of over 18 years of imprisonment to serve with an equally long non-parole period.

[23] On the other hand if the trial judge were to adhere to the default position under section 22 of the Sentencing and Penalties Act and make the current sentence also concurrent to the previous two, the total sentence for all three offences would have been under 10 years. I am convinced that given the appellant’s propensity to commit robberies accompanied by violence or threat of violence, deterrence and protection of the community should play a pivotal role in the sentence. He clearly poses a threat to the peaceful living of the law abiding citizens and should be kept away from society for a considerable period of time.

[24] In my view, the automatic application of section 22 of the Sentencing and Penalties Act (default position) would result in a hardly justifiable and inadequate aggregate sentence of 10 years or less. On the other hand, is an aggregate sentence of over 18 years of incarceration harsh and excessive in the circumstances and offend the proportionality principle given also the fact that the maximum penalty for aggravated robbery being 20 years of imprisonment? In other words, has the trial judge erred in the exercise of his discretion under section 22 of the Sentencing and Penalties Act in making the whole of the current sentence consecutive to the earlier two sentences?

[25] In Sauduadua v State [2019] FJCA 86; AAU0053.2016 (6 June 2019) I had the occasion to consider section 22(1) of the Sentencing and Penalties Act, 2009:

‘[39] Section 22(1) of the Sentencing and Penalties Act, 2009 reads as follows

‘Concurrent or consecutive sentences: