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Radaubale v The State [2005] FJHC 40; HAA0145J.2004S (25 February 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0145 of 2004S

Between:

1. MARIKA RADAUBALE;
2. MILIO NAKOROLUVU;
3. JOSEFA LUBA; and
4. RATU JOSEFA TAGIVAKATINI
Appellants

And:

THE STATE
Respondent

Hearing: 18th February 2005
Judgment: 25th February 2005

Counsel: Appellants in Person
Mr. A. Ravindra-Singh for State

JUDGMENT

The Appellants were charged in the Suva Magistrates’ Court, as follows:

FIRST COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(b) of the Penal Code, Act 7.

Particulars of Offence

MARIKA RADAUBALE, MILIO NAKOROLUVU, JOSEFA LUBA and RATU JOSEFA TAGIVAKATINI on the 3rd day of April, 2004, at Nasinu in the Central Division robbed ROHIT PRAKASH s/o Shiu Bharan of $88.00 and immediately before such robbery, did use personal violence on the said Rohit Prakash s/o Shiu Bharan.

SECOND COUNT

Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to Section 293 of the Penal Code Act 17.

Particulars of Offence

MARIKA RADAUBALE, MILIO NAKOROLUVU, JOSEFA LUBA and RATU JOSEFA TAGIVAKATINI on the 3rd day of April, 2004, at Nasinu in the Central Division, unlawfully and without the colour of right but not so as to be guilty of stealing, took to their own use van registration number EG 069 the property of Deoji Bhai s/o Prag Bhai.

THIRD COUNT

Statement of Offence

RESISTING ARREST: Contrary to Section 247(b) of the Penal Code, Act 17.

Particulars of Offence

JOSEFA LUBA on the 3rd day of April, 2004, at Nasinu in the Central Division, after being lawfully arrested by Police Officer namely PC 2999 Patrick Danford, resisted the said arrest.

FOURTH COUNT

Statement of Offence

ASSAULTING POLICE OFFICER IN DUE EXECUTION OF HIS DUTIES: Contrary to Section 247 of the Penal Code Act 17.

Particulars of Offence

MILIO NAKOROLUVU on the 3rd day of April, 2004, at Nasinu in the Central Division, wilfully assaulted a Police Constable Number 2999 Patrick Danford in due execution of his duties.

FIFTH COUNT

Statement of Offence

DRIVING MOTOR VEHICLE WITHOUT A VALID DRIVING LICENCE: Contrary to Section 56(3)(a) (6) and 114 of Land Transport Act No. 35 of 1998.

Particulars of Offence

MILIO NAKOROLUVU on the 3rd day of April, 2004, at Nasinu in the Central Division drove a motor vehicle on Pritam Singh Road without being the holder of a Driving Licence in respect of the said motor vehicle.

SIXTH COUNT

Statement of Offence

DRIVING MOTOR VEHICLE IN CONTRAVENTION OF THE THIRD PARTY POLICY RISK: Contrary to Section 4(1)(2) of Motor Vehicle (Third Party Policy) Act 177.

Particulars of Offence

MILIO NAKOROLUVU on the 3rd day of April, 2004, at Nasinu in the Central Division, drove a motor vehicle on Pritam Singh Road when there was not in force in relation to the use of the said motor vehicle by the said Milio Nakoroluvu of a policy of insurance in respect of the Third Party Policy Risks as complied under the provisions of this Act.

The matter was first called in court, on the 13th of April, 2004. The pleas were mixed, and the matter was set for trial on some counts. The trial proceeded on 15th June 2004.

PC Danford gave evidence that on the 3rd of April at 11am he received a report of unlawful use of motor vehicle. He and other police officers then gave chase. The vehicle which was the subject of the chase was a grey van, registration number EG069. It was abandoned at Sakoda Road and four suspects got off at a track leading to the village. The witness arrested the 3rd Appellant. He was assaulted by another suspect but the witness was unable to identify him. He went to hospital, having sustained injuries to his ear and hip. He later identified the 3rd Appellant in an identification parade.

Inspector Bulou gave evidence of the identification parade. He confirmed that Constable Danford identified the 3rd Appellant, and that a witness Rohit Prakash, also identified the 3rd Appellant.

PC Sitiveni Druma gave evidence of the enquiries he conducted and of the caution interview of the 1st Appellant. He also seized clothes from the 1st Appellant’s house. The 1st Appellant suggested to PC Druma that he had assaulted him during the interview, but this was denied.

PC Epi Veimosoi was witnessing officer for the interview of the 1st Appellant. He said the 1st Appellant was not assaulted.

Shiu Rohit Prakash then gave evidence that on the 3rd of April 2004 he was driving EG 069 at 6pm. He parked it at Shop and Save Supermarket, and was approached by the 1st Appellant, whom he knew by face. He was wearing a red T-shirt and striped track pants. He asked the witness to take him to the Ram Sami farm. As they went up a hill, the 1st Appellant told the witness to get off, and called three other men to get in. One of them was the 3rd Appellant. The 1st Appellant held the shirt of the witness and threatened him. The witness escaped. The 1st Appellant started to chase him, and punched him on the face asking for money. The 2nd Appellant pulled his legs. They all grabbed his money. They then left in the van. The witness was later medically examined after he reported the matter at the Nasinu Police Station. He said he was robbed of $88.

PC Safea gave evidence that he witnessed the 1st Appellant punching Constable Danford when Danford was arresting the 3rd Appellant. The statement of the 4th Appellant was not tendered because the interviewing officer was in Kosovo. The interview of the 2nd Appellant was tendered by PC Ilai Vatuwaliwali. It was not disputed.

The interview of the 3rd Appellant was tendered by Acting Inspector Nemani. It was not disputed. There was a case to answer. The 1st Appellant chose to give no evidence, either as voir dire evidence. However he gave sworn evidence at the trial proper, saying that he did not commit the offence, that he did not know Rohit Prakash, that he did not know the other three Appellants, and that the police forced him to confess. The other Appellants decided to remain silent. However the 4th Appellant called one witness, his wife who said that on the 3rd of April 2004 her husband was at home in bed. She agreed however, that as she didn’t know what time the offence was committed, she could not say whether or not he had committed it.

Judgment was delivered on the 15th of October 2004. The learned Magistrate dealt firstly with the admissibility of the 1st Appellant’s caution interview. He said he was satisfied beyond reasonable doubt that the interview was voluntary and that the Judges Rules had been followed. He further said that the 1st Appellant was not a credible witness and that he thought that the contents of his interview to the police to be reliable.

He found on the basis of all the evidence, including that of the caution interviews, that on the 3rd of April 2004, all four Appellants drank together. The 1st Appellant hired the complainant’s vehicle. At Pritam Singh Road, the other Appellants entered the van. The 1st Appellant then threatened the complainant. When he tried to escape the 1st Appellant punched him, all four men grabbed him and forcefully took his wallet which contained $8.00. Under further threat, he gave $80.00 to them from his trouser pocket.

At an identification parade, the complainant identified the 1st Appellant and also described the clothes he wore. Further, the caution interviews of each Appellant implicated them in a joint enterprise in relation to the robbery, the unlawful use, and the resisting of arrest. Further, the 2nd Appellant assaulted a police officer while he was trying to arrest the 3rd Appellant on Count 3.

The 2nd, 3rd and 4th Appellants have previous convictions, some for similar offences. The 1st Appellant was a first offender. The 4th Appellant offended during the operational period of a suspended sentence. In mitigation, all Appellants expressed remorse and spoke of their family circumstances. The 3rd Appellant was unemployed. The 4th Appellant said he was drunk.

In sentencing the Appellants, the learned Magistrate considered the use of a weapon, the injuries (which were not serious) and the prevalence of the offences. He took 6 years as his starting point. For the 1st Appellant, although he was a first offender, he was also the principal offender. He was sentenced to 4 years and 6 months imprisonment, to be served concurrently.

The 2nd Appellant was sentenced to 5½ years imprisonment and 9 months imprisonment to be served concurrently. The 3rd Appellant’s suspended sentence was not activated, because he re-offended in the last month of it. However, he was sentenced to 5 years on Count 1 and 6 months on Count 3, to be served concurrently.

The 4th Appellant was sentenced to 5½ years imprisonment on Count 1 and 6 months imprisonment on Count 2. His suspended sentence was activated (9 months) and all sentences were to be served concurrently.

The 2nd, 3rd and 4th Appellants appealed against conviction and sentence. The petition of appeal of the 1st Appellant is not on the court record, but he appeared in court at the hearing of the appeal, saying that he had lodged an appeal on time. I found no trace of his petition on the court file, but gave him leave to appeal treating his written submissions as a petition of appeal.

The 1st Appellant

The 1st Appellant raised the admissibility of his confession. He said he was assaulted by several police officers whilst being interviewed and that the assaults only stopped at 10.30pm when he finally confessed. He said he received injuries but that he had not been given any opportunity to tender his medical report.

He further said that he was prejudiced by lack of representation, that the evidence of identification was unsatisfactory and that there was a failure to properly weigh the evidence.

On sentence, he said that his sentence was harsh and excessive compared with other cases of robbery with violence and that he should have been given a suspended sentence.

State counsel in responding, said that because the 1st Appellant raised matters which were not raised at trial, he wished to tender the cell book and station diary of the station at which the Appellant was held. I gave him leave because he had, very fairly, not objected to the late appeal, or the raising of grounds not before the trial magistrate.

A perusal of these documents show that even if the Appellant had raised these matters at trial, it would have made no difference to the learned Magistrate’s ruling on the confession. The 1st Appellant said he was held and assaulted by a group of officers from 7am to 10.30pm on the 7th of April, but the station diary shows that he was not taken to the Nabua Police Station until 11.30pm on the 10th of April. Further although he was medically examined, no medical report was available to the prosecution but the cell book records no injuries or marks of violence. The total custody period was 37 hours and 80 minutes, but that includes waiting time and time to see the doctor.

In respect of the right to counsel, State counsel said that the Appellant waived his right and was not prejudiced by lack of representation.

I agree. The record shows that on several occasions, the learned Magistrate explained to the 1st Appellant, the need to cross-examine, and dispute evidence. Further he explained to him his right to counsel, and the 1st Appellant clearly and unequivocally waived that right. Although on several occasions he opted not to ask questions when he ought to have done so, the learned Magistrate warned him carefully about the need to cross-examine. Given the clear and uncontradictory way in which the evidence was led, it is unlikely that cross-examination, in any event, would have resulted in a favourable outcome for the Appellant.

His appeal against conviction is therefore dismissed. So is his appeal against sentence. Although he was a first offender, he played a leading role in the robbery. Considerable discount was given to him on account of good character, and his sentence was lower than that of his co-accused. The sentence imposed was at the lower end of the tariff and is not wrong in principle. His appeal is dismissed.

The 2nd Appellant

The 2nd Appellant also raised a breach of his right to counsel, and what he said was a sentence which is harsh and excessive.

Again, he was explained his right to counsel and he clearly and unequivocally waived it. I do not consider that he was prejudiced by such waiver.

In respect of sentence, the sentence passed was within the tariff, and reflected the gravity of the offending. It also took into account all mitigating circumstances.

His appeal is dismissed.

The 3rd Appellant

The 3rd Appellant’s complaint is about sentence only. He says that the 1st Appellant was the real culprit and that he should have received the heaviest sentence. He further referred to other robbery cases where the result was a suspended sentence.

There was a very good reason for the 1st Appellant’s lower sentence – he was a first offender. Further, a comparison with other robbery cases is not always helpful. Firstly, guideline sentencing in robbery cases only became routine since the High Court and Court of Appeal issued such guidelines. Suspended sentences for robbery with violence cases are not likely to be very rare, because the tariff for robbery with violence is 4 to 7 years with a higher tariff for home invasions and armed robbery.

Secondly, the facts of the other cases referred to by the Appellant, are not known to me, so the comparison does not assist.

The appeal against sentence is dismissed.

The 4th Appellant

Having perused the court record I am unable to find any evidence implicating the 4th Appellant. His caution interview was not tendered. He was not identified by PC Danford or by Rohit Prakash. It is true that his accomplices implicated him out of court, but that was not admissible against him. He gave no evidence and his wife gave alibi evidence.

In the circumstances his conviction cannot stand. Although his appeal was substantially against sentence, he did complain in his written submissions, that he was convicted on the basis of his co-accused’s caution statements. It appears that he was right.

I quash his conviction and sentence and enter an acquittal. His appeal succeeds.

Conclusion

All other appeals are wholly dismissed.

Nazhat Shameem
JUDGE

At Suva
25th February 2005