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Basa v State [2007] FJHC 24; HAA 048.2007 (7 September 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL CASE NO.: HAA 048 OF 2007

BETWEEN:

SAKIUSA BASA
Appellant

AND:

THE STATE
Respondent

Counsel: Mr. F. Vosarogo – for the Appellant
Mr. A. Ravindra-Singh – for the State

Date of Hearing: Friday 31st August, 2007
Date of Judgment: Friday 7th September, 2007

JUDGMENT

Background

[1] The appellant was charged with one count of robbery with violence.

[2] The background circumstances were that the complainant had driven her vehicle into a garage adjoining her house when suddenly the appellant and one other ran up the driveway towards her.

[3] At trial it was alleged that as the complainant alighted from her vehicle she was confronted by the appellant. The appellant demanded that she give him the keys to her car. She refused. The appellant hit her with an iron rod and threatened to kill her. The victim then handed the keys to the vehicle over.

[4] At the same time the second accused fled the scene as he had been hit by the complainant’s cousin. Upon seeing the second accused flee the appellant thought better of his robbery and he too fled the scene after his accomplice leaving the vehicle key in the ignition.

[5] When caught on the 21st of June 2006 the appellant was interviewed under caution. He denied the charge.

[6] The appellant appeared in court first on the 23rd of June 2006. The trial eventually took place on the 12th of February 2007 and he was found guilty. He was later sentenced to 3 ½ years imprisonment to be served concurrently with his existing sentences.

[7] He appeals against conviction and sentence. The State has cross-appealed against the leniency of sentence.

[8] The victim in this matter is Magistrate Ana Rokomokoti. I record that before the appeal commenced I advised counsel for the appellant and respondent that I knew the victim. I was confident that my knowledge of her would not affect this judgment but sought from counsel any objection to my hearing the appeal. No objection was taken.

Grounds of Appeal

[9] In his conviction appeal the appellant alleged that he was practically denied his right to legal counsel to represent him at trial. He further submits that he was not given long enough to prepare for his defence. Lastly he complains that the quality of the identification evidence submitting that it should not have been accepted as there is no independent identification parade held prior to trial. Dock identification he says was accepted and there is no corroboration of the complainant’s evidence.

The Right to Legal Counsel

[10] The record indicates that from the point of his first appearance before the court the appellant had his rights to counsel fully explained. He first elected to be represented by private counsel Mr. Vuataki. However, his position about representation subsequently changed and he made application to the Legal Aid Commission for a Legal Aid lawyer to be appointed.

[11] There were subsequent mentions of the case where the need to provide disclosure was emphasized. The matter was fixed for hearing on the 9th of February 2007 but could not proceed as it was said the second phase disclosure had not been served.

[12] It was on that day that the court was told that Legal Aid for the appellant’s representation was still under consideration and accordingly the case was stood down from 9.30 to 11.30.

[13] The record then reflects that at 11.30am when the accused appeared he did so without a Legal Aid lawyer and he elected to represent himself.

[14] The accused asked for time to prepare his case and was given an adjournment till the following Monday with the court scheduled to hear the case at 11.30am that day.

[15] When the appellant next appeared on Monday the 12th of February 2007 he was asked if he was ready to proceed and he told the court he was. The trial then commenced.

[16] The record confirms that at no time on the 12th of February 2007 did the appellant raise any objection to the matter proceeding. He did not seek a further adjournment. He did not further question his right to representation.

[17] In an elegantly drafted submission counsel effectively argues that although the right to counsel was waived that is not the test to be considered. Rather the court is required to stand back and answer the question whether there is a possibility that the appellant was adversely prejudiced by his lack of representation. In McInnis v The Queen [1979] HCA 65; [1979] 143 CLR 575 at 583 his honour Mr. Justice Mason observed that this question is primarily resolved by looking at the nature and strength of the State case and the nature of the defence which is made to it. If the State’s case is overwhelming then the absence of counsel cannot be said to have deprived an accused of a prospect of acquittal. But if the State’s case is less than overwhelming the court may find some difficulty in finding that the conduct of the case by an unrepresented accused lead to a fair hearing.

[18] The key to the Prosecution Case was the strength of the complainant’s identification of the accused. That was a strong and positive identification as the complainant and the accused had known each other since childhood. They were brought up together in the same neighbourhood. The complainant said that she knew the accused’s parents well and that she was shocked to see him treating her in the way that he did. While conceding that the accused’s face was covered nonetheless from his build, demeanor and especially the sound of his voice the complainant said she was well able to recognize him.

[19] The accused has had a number of significant appearances in the court. I find that through his appearances he has become accustomed to the procedures of examination and cross-examination.

[20] This is ably demonstrated in the record. His cross-examination on the issue of identification was extensive and he asked pertinent questions. His forensic skill is also emphasized by his closing submissions to the court which again address the issue of identification and skillfully argues the essential matters.

[21] I find the State’s case against Mr. Basa on this occasion was overwhelming. There are good reasons to accept the evidence of the complainant that she recognized the voice of her assailant. That this is so was in part corroborated by the calling of the investigating officer who recalled that even in the state of shock the victim (although she did not subsequently remember doing so) identified her assailant as the accused Sakiusa Basa.

[22] I am satisfied that the accused knew of his right to legal counsel. I am satisfied that he waived that right unequivocally. I am satisfied that he demonstrated by his questioning that he was experienced enough to ask appropriate and pertinent questions and make submissions on the essential issue which was his identification by the victim. I, therefore, cannot say with any confidence whatsoever that Mr. Basa was deprived of the prospect of an acquittal and for those reasons I reject this ground of appeal.

The Adjournment

[23] Co-related to the ground of right to counsel was a claim that the learned Magistrate should have granted a longer adjournment than 3 days to allow sufficient time for the unrepresented accused to prepare his defence case.

[24] I reject that submission.

[25] The record indicates that the disclosures were provided to the appellant as early as the 5th of July 2006. He apparently rejected them. He was then re-served with those disclosures on the 9th of February 2007 and allowed time to prepare. The record indicates that on that day he said he would be ready for hearing the following Monday.

[26] When he appeared on Monday the 12th of February 2007 he told the court he was ready to proceed. The cross-examination of the victim and the submissions he subsequently gave to the court certainly indicate he was well prepared.

[27] Appellant counsel’s skillful submissions to the effect that the learned Magistrate should have second guessed the accused’s waiver and nonetheless granted him a longer adjournment within which to prepare his case is with respect untenable. I reject that ground of appeal.

The Identification Evidence

[28] I similarly reject the ground of appeal concerning the reception and consideration of the identification evidence.

[29] This was a case where the identifying witness had previously known the accused as she was raised with him in the same neighbourhood.

[30] The learned Magistrate’s judgment thoughtfully analyzes those issues and contrasts the identification with the alibi of the accused. I find the judgment to be soundly based on the evidence presented at trial. In those circumstances no criticism can be attached to it and this ground of appeal is also rejected.

[31] The appeal against conviction is dismissed and I now move to consider the State’s cross appeal against sentence.

Cross Appeal against Sentence

[32] The State’s cross appeal against sentence emphasizes the lenient starting point but primarily relies on a submission that the learned Magistrate should have ordered the sentence to be served consecutively to serving sentences.

[33] To be successful on a State’s sentence appeal the appellant must demonstrate that the sentence imposed was manifestly lenient. I find that it was.

[34] The starting point of 3 ½ years imprisonment was too low for a recidivist offender conducting a brutish home invasion. I derive a starting point of 5 years imprisonment. I accept that the matters of mitigation and aggravation described in the learned Magistrate’s sentencing are in equipoise so the ultimate sentence must be one of 5 years imprisonment.

[35] I consider that this was separate and discreet offending committed during a period when the appellant had escaped from jail. I am satisfied that a consecutive and not a concurrent sentence was called for.

[36] As matters presently stand and appellant will be released from prison sometime in 2012. The totality principle applies. I will reduce the 5-year term of imprisonment to one of 2 years jail. This will be served consecutive to the existing term of imprisonment.

Conclusion

[37] Accordingly, the appeal against conviction is refused. The appellant’s appeal against sentence is dismissed. The State’s cross-appeal against sentence is granted. The sentence imposed by the learned Magistrate on the 26th of March 2007 is quashed and substituted by a term of 2 years imprisonment to be served consecutively to the present term with effect from the 26th of March 2007.

[Gerard Winter]
JUDGE

At Suva
Friday 7th September, 2007

Solicitors
Office of the Legal Aid Commission, Government Buildings, Suva for the Appellant
Office of the Director of Public Prosecutions, Suva for the State.