Respondent
Appellant in Person
Hearing: 20th October 2000
Judgment: 24th October 2000
JUDGMENT
This is an appeal against sentence. The Appellant, on 8th June 2000, was charged with the following offence:
Statement of Offence
HOUSEBREAKING ENTERING &ENY: Contrary to section 300(a) of the Penal Code, Cap. 17.
ass=MsoNormaNormal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> Particulars of Offence
SAULA KALOKALODRAVU with others on the 6th day of Jun00 at Suva in the Central Division broke and entered the dwhe dwelling house
of one JOHN TUI and stole a Guitar valued $500.00, Brushcutter valued $650.00, assorted clothes valued $700.00, assorted jewelleries
valued $500.00, and a video deck valued $399.00 to the total value of $2749.00 the property of the said JOHN TUI.
The facts as outlined by the prosecution were brief and are as follows:
“On 6/6/2000 between 11.00am - 1.35pm Accused with the others, went to Complainant’s house from Parliament. They forced the main door,
caused damages to the premises and furniture, then stole the items in the charge. Accused was identified by one Sgt. Penaia Balawa
from the Army’s Engineering Section; was arrested handed to Police. Taken to CPS, interviewed, admitted, charged.
Facts admitted. Convicted as charged.
<
ass=MsoNormaNormal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> First offender.”p class=MsoNormal style="margin-top: 1; margin-bottom: 1">
He was sentenced to 3 years imprisonment. The Appellant appealed against his sentence e following grounds:
p class=Level1 sel1 style="margin-top: 1; margin-bottom: 1"> 1. &n/span>
2. &nbssp;&nnbsp;&nsp; &nsp; &nbssp; &&nsp;;&nsp; &nbp; heat s dwaied medicmedical help and legal representation;
3. &nnsp;&&nsp;;&nspp;&nssp;&nsp; &nbp; ;&nbpp; That since tnce the offence was committed after the events of May 19th 2000, it warranted legal representation.
The Appellant’s grounds of appeal are more relevant to an appeal against conviction than an appeal against sentence. Appeals against
conviction on a plea of guilty are barred by statute. Section 309(1) of the Criminal Procedure Code provides as follows:
“No appeal shall be allowed in the case of an accused person who has pleaded guilty as been convicted on such plch plea by a magistrate’s
court, except as to the extent or legality of the sentence.”
The only circumstances in which a court could consider quashing a conviction on a plea of y, would be in the event that the plea was
found to be equi equivocal for some reason. One such reason would be that the Appellant pleaded guilty without understanding the
charge (R -v- Phillips (1982) 1 ALL ER 245). The Appellant said in his submissions that he pleaded guilty because the police forced him to do so. This, if accepted, could be
a ground for declaring the conviction a nullity. In R -v– Inns (1975) 60 Cr. App. R. 231, the Appellant’s counsel was found to have put pressure on the Appellant to plead guilty. It was held that this was a ground to quash
the conviction. This principle does not however stretch to the giving of firm and decisive advice to a client to plead guilty.
In R -v- Pearce (1976) Crim. L.R. 119, the accused pleaded guilty after receiving advice from his counsel. He ted the advice reluctantly ntly but could not be said to
“have lost his power to make a voluntary and deliberate choice.” The plea was held not to be a nullity.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In this case the Appellant does not say that henot understand the plea. Indeed, he is recorded as having said that he understood it
and adnd admitted it of his own free will.
The Court Record reads as follows:
“Charge read, explained and understood.
Plea: I understand the charge - I admit it.
Accused admits on his own free will.”
At the hearing therefore, the Appellant said nothing about alleged police pressurring mitigation, he said nothing about police pressure.
The. The first time the Appellant alleged police and military misbehaviour was in his appeal, filed one month after his conviction.
Nor did the Appellant complain of assault, nor is there a record of injuries perceived by the learned Magistrate, when the Appellant
appeared in court.
In the circumstances I do not accept his submissions that he was forced to pguilty. His submissions do not amount to evidence, and
are are inconsistent with the unequivocal clarity of the court record.
Similarly there is no record of a request for legal representation. Indeed at theing of this Appeal, he continued to be unrepresented
by couy counsel.
For these reasons, Grounds (1), (2) and (3) are dismissed.
Sentence
Although no grounds were advanced by the Appellant on the question of sentence, his appes treated as one against sentence and conviction.
State counsel submitted that the offence of house-breaking is a serious one, and a prevalent one. He submitted that discount was given
for the plea of guilty, and that the sentence of three years was not manifestly excessive.
I agree. Indeed, the circumstances in which the offence was committed, the timing of it (when the nation was threatened with lawlessnes
chaos) and the fact that that the Appellant issued forth from Parliament to commit the offence, aggravate the offence considerably.
These circumstances outweighed the concern that the courts often have, to keep first offenders out of prison.
Given therefore the seriousness of the offence, and the gravity of the circumstances surroundt, the term of three years imprisonment
is far from being ming manifestly excessive. The appeal against sentence is dismissed.
Nazhat Shameem
JUDGE
At Suva
24th Or 2000
Haa069j.00s
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