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Baleitamavua v The State [2004] FJHC 74; HAA0060J.2003S (22 March 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0060-063 OF 2003

Between:

RUPENI BALEITAMAVUA
Appellant

And:

THE STATE
Respondent

Hearing: 19th March 2004
Judgment: 22nd March 2004

Counsel: Appellant in Person
Mr. S. Qica for State

JUDGMENT

The Appellant was convicted of robbery with violence on the 15th of August 2003. He was sentenced to 5 years imprisonment, and because he had re-offended during the operational period of a suspended sentence imposed in 2002, part of his suspended sentence was also re-activated. He is now serving a total term of 6 years imprisonment. He has appealed against sentence.

At the hearing of the appeal, State counsel said that the conviction was a nullity because the facts did not disclose the Appellant’s involvement in the offence. He said that the case should be remitted to the Magistrates’ Court for the plea to be re-taken.

I agree with him. The Appellant was originally jointly charged with two others. They were the 1st and 2nd accused. They pleaded guilty on the 13th of May 2003. The facts were read, and showed that the complainant, a taxi-driver, was driving at Reba Circle when the two accused stopped him and told him to go to Duvula Road, then to Maqbool Road. The 1st accused tried to take the car keys off the complainant when he stopped his vehicle. The 2nd accused punched the complainant on the eyelid. They stole the car stereo, taximeter and mobile phone. Items worth $1000 were recovered.

The two accused admitted these facts and were convicted and sentenced. The Appellant was not implicated in the outlining of these facts, presumably because he had pleaded not guilty.

When, however, he changed his plea on the 15th of August 2003 the facts were not outlined again, the prosecutor saying that the facts had been read out to the Court on the 13th of May.

It is quite clear that the Appellant’s conviction is a nullity in law because he is not implicated by the facts. The conviction must be quashed. It follows that the sentence and the activation of the suspended sentences must be similarly quashed. I remit this matter to the learned Magistrate to hear the facts afresh and to sentence. I therefore make no comment as to sentence, other than to say that the learned Magistrate’s approach to sentence in a robbery with violence case appears to be correct in principle.

Nazhat Shameem
JUDGE

At Suva
22nd March 2004