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Vuli v The State [2005] FJHC 82; HAA0105.2004 (18 February 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO.: HAA0105 OF 2004

BETWEEN:

JEKESONI VULI
Appellant

AND:

STATE
Respondent

Counsel: Mr. A. Vakaloloma – for the Appellant
Mr. W. Kuruisaqila – for the State

Date of Hearing: 11th February, 2005
Date of Judgment: 18th February, 2005

JUDGMENT

BACKGROUND

The appellant with others was charged and convicted after trial on one count of robbery with violence and one count of unlawful use of a motor vehicle.

He was sentenced to 5 years imprisonment on the robbery charge and a concurrent term of 6 months imprisonment on the motor vehicle offence.

He appeals conviction and sentence.

The Appellant’s Case – Conviction

The appellant submits that the learned Magistrate erred in law and in fact by allowing into evidence the confessional statement he made to police officers.

The appellant says that medical reports tendered in court were ignored and that accordingly the learned Magistrate erred by admitting the confessional statement.

This argument was perfected on appeal as it became clear that the objection taken to the statement at trial came far too late to affect admissibility. I observe that the learned Magistrate nonetheless quite properly considered the fairness and voluntariness of the confession for the purposes of assessing the proper weight to be given to this evidence.

There was further related criticism of the learned Magistrate that she failed to correctly weigh a medical report. It transpired in the appeal that the purported exhibit when identified was not a medical report from the examining doctor called by the prosecution rather a prison record and note. It is not clear whether this exhibit (Defence Exhibit 1) was ever put to the doctor. If the exhibit was properly before the court it does not support the injuries as described by the appellant and contains the phrase that apart from a soft tissue injury to the shoulder and left arm and elbow there were no other injuries observed. Accordingly the learned Magistrate’s conclusion on page 15 that the appellant told the doctor he was assaulted but no injuries were found on him is quite explicable.

Decision - Conviction

The learned Magistrate had the advantage of hearing from the Prosecution witnesses. She found that the policemen gave true evidence in court that the interview was voluntary and made without oppression. The judge accepted this appellant was served meals and given breaks. It was a further finding that no reports of police assault were made until the hearing of evidence in the case.

These available findings are supported by the evidence.

The learned Magistrate was correct to discount the appellant’s submissions on the lack of voluntariness in the confessional statement. The complaints he made were not fully supported by the medical evidence. The prosecution was therefore able to satisfy both the burden of proof and properly emphasize the weight to be given to the admissions made by the appellant in his confession.

It is further argued that the learned Magistrate failed to consider the appellant’s alibi provided in the record in his caution interview statement. Alibi was never properly raised before or at trial. Even if alibi was properly raised it is of little significance when compared with the court’s finding on the voluntariness of the entire confession and the appropriate weight to be given to the admissions made therein. During the course of that interview the accused identified the clothing, cane knife, gloves and balaclava used during the robbery which tallied with the evidence of the Bank officers present during the robbery.

For all of these reasons I find that there was no error of law or fact in the admissibility or proper weighting of the confessional statement. The learned Magistrate took into account the appropriate medical evidence and was not obliged to pursue the issue of alibi either as to substance or weight.

For these reasons I dismiss the conviction appeal.

Sentencing

This appellant has an unenviable conviction record including 14 previous violence and dishonesty offences involving simple larceny, office breaking and entering, larceny from the person, house burglary and larceny and robbery with violence. He also has previous unlawful motor vehicle use offences. He has served jail time for his dishonesty and violence.

This was a serious robbery of the ANZ Bank at Laucala Beach. The robbers used weapons including cane knives and a realistic looking toy gun. This was a commercial raid well planned and executed.

The learned Magistrate in a lengthy and thoughtful sentencing submission (commencing on page 247 of the record and concluding on page 255) weighed every available factor in this appellant’s favour before imposing a sentence of 5 years imprisonment.

Keeping in mind the guideline judgments in Fiji that have largely followed the New Zealand Moananui Case (R v Moananui [1983] NZLR); in my view; the sentence imposed on this occasion was moderate. It was certainly not excessive.

The learned Magistrate properly directed herself on the range of available sentences. In her judgment including the cases of Iliaseri Saqasaqa v The State, Criminal Appeal No. 7 of 1999 where the offender had a long list of previous convictions and conducted an armed robbery with a knife, pinch bar and wire of commercial premises. The offenders received 7 years imprisonment. Again in Nasoni Tamani v The State, Criminal Appeal No. AAU0004 of 1998S, where the Court of Appeal dismissed an appeal against a sentence of 8 years imprisonment for armed robbery of an ANZ Bank branch.

In my view the learned sentencing judge correctly considered appropriate sentencing principle and applied that principle to the salient facts of the case.

I accordingly dismiss the sentence appeal.

Conclusion

Both appeals against conviction and sentencing are dismissed.

Gerard Winter
JUDGE

At Suva
18th February 2005