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Vacena v The State [2004] FJHC 5; Haa0023.2004 (25 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 023 OF 2004

BETWEEN:

ESALA VAKALASAQERE VACENA
Appellant

AND:

STATE
Respondent

Counsel: Appellant - In Person
Mr. Prasad - for the State

Date of Hearing: 17th June, 2004
Date of Judgment: 25th June, 2004

JUDGMENT

This is an appeal against sentence. The appellant pleaded guilty to 3 counts of Larceny from the person. He was sentenced to 12 months imprisonment on each count to be served consecutively. A total of three years imprisonment.

Particulars of the Offence

The appellant on the 18^th of October 2003 followed the victim who was returning from Rups Big Bear to her car. He ripped her handbag from her and ran off. The bag was valued at $40.00 and contained $50.00 cash. The property was not recovered. Again on the 22^nd of November 2003 at Samabula the victim and her brother were walking along a feeder road on the Jittu Estate. The appellant suddenly came up from behind them and grabbed the victim's brother, searched his pockets, couldn't find anything, turned around and grabbed the victim's bag. In the process he stole from her a gold watch valued at a $135.00, a gold chain valued at $250.00, the leather bag valued at $39.00, a citizen wrist watch valued at a $178.00, cash of $200.00 – a total value of $802.00. The appellant struck again on the 27^th of November 2003. He came up from behind the victim who was on her way home. He grabbed her purse and ran off. The purse contained $450.00. None of the property was recovered.

The appellant admitted the facts during police interview.

The Grounds of Appeal

In a handwritten letter typed and transcribed for the purposes of filing in court the appellant pleads:

• He was unrepresented during the hearing and this was in breach of his constitutional rights.
• That the learned Magistrate failed to properly take into account an early guilty plea.
• That the learned Magistrate failed to fully consider other matters of mitigation.
• That the learned Magistrate was wrong in passing a sentence of 3 years imprisonment due to the appellant's previous convictions on this ground said to be advanced in reliance on Section 28(1)(k) of the Constitution. This provision guarantees a right not to be tried for the same offence twice.
• That the sentence was harsh and excessive.
• General Mitigation: he is from a poor family and in a de facto relationship; he is the effective breadwinner of the family supporting 2 women as his father is away on peace keeping duties in the Middle East.
  

It was confirmed by the appellant that his appeal was against sentence only.

At appeal on the 5^th of May he was warned of his right to counsel and advised that he can in that regard make application to the Legal Aid Commission.

The appellant then requested and was granted one further adjournment. At his next appearance he had prepared and pre-filed helpful submissions. These amplified his grounds on appeal. He rested his case on those submissions.

The appellant strongly asserts that on the 23^rd of December he requested a lawyer. There is no note of this request in the record. I prefer the validity of the learned Magistrate's record and I find that this appellant never requested a lawyer. It is clear from the outset of this matter that he has been remorseful, content to waive his rights to representation and ready to plead guilty.

Its further argued that he was never given any time to look for a lawyer. I find against the appellant on this matter he was arrested on the 21^st of December, made his first appearance on the 23^rd of December and was sentenced on the 30^th of December. He had ample time between arrest, conviction and sentence within which to seek legal representation.

I accept the submission made by State Counsel that the police file discloses his usual constitutional warnings including the right to representation were given but the appellant waived those rights. This is consistent with his expression of remorse.

The appellant in his written submission then submits that he has in effect been tried twice as the learned Magistrate took into account his previous convictions when sentencing him. The appellant was of the view that his previous convictions were irrelevant. He is wrong both in Law and principle and I reject that submission.

He then proceeds to amplify the other grounds in his appeal and in particular argues the sentence was harsh and excessive. This submission will receive further consideration later in this judgment. He then amplifies his grounds of mitigation emphasizing his co-operation and early plea.

The State submitted that while there is no record of the appellant being offered his constitutional rights to representation this is not necessarily fatal to the sentencing process. Counsel submitted that the appellant is not a first offender, that he is experienced in the ways of the Court and it can be therefore assumed that he was fully aware of his constitutional rights and the consequences of plea.

Moreover, the State submits that there is no evidence of improper pressure to plead guilty. Far from it the State submits the appellant from the time of his arrest has sought to co-operate with the police and then at first appearance pleaded guilty indicating that he had always understood both the charges and his plea.

The State submits that there is no prejudice in the sentencing as the learned Magistrate paid close attention to the submissions and mitigation made by the appellant.

The State says the sentence was neither harsh nor excessive particularly taking into account the appellant's previous convictions. They submit that these offences were well planned and executed. That the appellant has not shown any genuine remorse as he continues to target innocent women.

The Sentence

The accused finally appeared on these matters on the 23^rd of December 2003. At that appearance the charges were read to him, explained to him and he indicated he understood them. The facts of each offence were simply stated. The ingredients of the offences were clear. He admitted each and every offence. He admitted each and every set of facts after it had been read. He was convicted. He admitted his previous convictions. He offered mitigation in similar terms to that portrayed in his grounds of appeal. He expressed remorse, claimed conversion from his wicked ways and asked for leniency.

The case was then adjourned to the 30^th of December for sentencing. The criminal case record on Magistrates Court Case No. 273/2003 has a transcript of the handwritten sentencing decision. It addresses all of the relevant issues noting in particular matters of mitigation and aggravation. The learned Magistrate refers to a similar case (Criminal Appeal 0047/2001S) where an earlier sentence of 3 years imprisonment was upheld on appeal. The judge then reflected on the totality principle before imposing sentence.

I find the sentence was properly constructed and correct in its application of the significant sentencing principles.

A Right to Counsel

In Suren Singh & Others v The State [2000] Criminal Appeal 035/00 the appellants pleaded guilty and were sentenced then appealed against the severity of their sentence. In addition three of them complained that the Magistrate failed to advise them of their constitutional right to a lawyer before the taking of pleas.

In a model judgment my learned sister Justice Shameem rejected the argument that there was a breach of constitutional rights and dismissed the appeal. I adopt the reasoning of her decision.

The principles might be summarized in this way:

• Constitutional rights and freedoms have to be given a purposive reading.
  
• The purpose of Section 27(1) is to dispel the pressure inherent in custodial interrogation.
  
• The purpose of Section 28(1)(d) is to secure a fair trial that includes a right of the accused to choose to be legally represented.
  
• It is not simply a matter of pointing to a failure by the Magistrate to record some form of constitutional rights mantra; more is required. The appellant must demonstrate that such a failure on the part of the Magistrate did in fact result in prejudice and an unfair proceeding.
  

I encouraged this appellant to tell me what was prejudicial and unfair about his hearing. He was unable to do so. That is not surprising.

The record reflects that at the police station he was offered a lawyer but declined. He admitted each and every count. The facts of each and every count are easily understood. The charges have simple ingredients. The charges were read and explained to him at his first hearing on the 23^rd of December 2003. He acknowledged them and indicated he understood. Finally he acknowledged his offending again in mitigation by expressing remorse and asking for leniency in the sentencing process. The appellant is a man with an impressive record of previous convictions for offending of a similar character. I infer he is not unfamiliar with the court process.

I find that the learned Magistrate should have explained to the appellant his rights under Section 28(1) of the Constitution before the plea was put to him. However, I find there was no prejudice to him. I have inspected the record of the proceedings and read the Magistrate's decision. I can find no unfairness in the sentencing process.

In my view Section 27(1) has no relevance to this appeal. This is not a matter of the appellant being tried twice for the same offence.

The constitutional grounds advanced in this appeal are dismissed.

Sentencing Principle

In Poniasa Saulekaleka v The State, Criminal Appeal No. HAA 050 of 2001, my sister Justice Shameem accepted a tariff for pick-pocketing offences as between 12 to 18 months imprisonment. In that case the appellant stole $237.00 and fifty English Pounds from a tourist. The tourist was shopping at the Suva Market. The money was recovered. An early guilty plea was made. The original sentence of 2 years imprisonment was reduced on appeal to one of 10 months.

In Lote Raikabula v the State [1990] Criminal Appeal 59 an appellant with previous convictions snatched 3 gold chains from the victim whilst she was walking along a public road. The appellant in that case was young and there were other mitigating factors. The sentence was reduced on appeal and it was nonetheless maintained at 12 months imprisonment.

In Ropate Vesi Tanidrala v the State Criminal Appeal Nos. HAA 046, HAA 047 of 2001. The appellant pleaded guilty at the first opportunity but had a number of previous convictions. In one instance he conned a young victim leaving the ANZ Bank into buying him a coffee, than stole money out of her purse. In the second offence he acted in a much more aggressive and blunt way by simply grabbing money from a victim as she went to put change into her purse. The court in that instance upheld a 2 year and 1 year sentence to be consecutively served. The learned justice found that a total term of 3 years imprisonment in those circumstances was appropriate and did not consider the consecutive terms offended the totality principle.

Decision

This was discreet offending. The learned Magistrate was entitled if not obliged to impose consecutive sentences. In the circumstances a 12 month term for an offender with a history of dishonesty offences who continues to prey upon his victims is not excessive. The learned Magistrate properly weighed and considered the aggravating and mitigating factors. He considered the totality principle. The record shows he took into account the prompt guilty plea but balanced that out against the appellants previous convictions.

I agree with his comments in the sentencing decision. This prisoner has simply not learned his lesson from the last time he was in prison. He continues to target female victims. He is making a lifestyle of criminal offending; that is unacceptable. He deserves a custodial sentence. Society deserves a break from his style of offending.

The total term of imprisonment is not excessive.

All three (3) appeals are dismissed.

Gerard Winter
JUDGE

At Suva
Friday 25th June, 2004