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Vasuca v State [2011] FJHC 228; HAA008.2011 (21 April 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 008 OF 2011

BETWEEN

VILITATI VASUCA
Appellant

AND:

STATE
Respondent

Appellant in Person
Mr. M. Korovou (15th March) and Mr. T. Qalinauci (15th April) for the Respondent

Date of Hearing :5th March and 15th April 2011
Date of Judgment: 21 April 2011

JUDGMENT

[1] On the 7th July 2010 in the Magistrates Court at Lautoka, this appellant entered a plea of guilty to a count of burglary contrary to section 299(a) of the Penal Code, Cap. 17 and one count of larceny from a dwelling house contrary to section 270 of the Penal Code, Cap. 17. Both offences were related and were said to have been committed on the 29th July 2007.

[2] Facts were read to this appellant, which facts he agreed and he was convicted.

[3] On the 22nd September 2010, the appellant sought to change his plea to not guilty saying that on the day he pleaded he was "not in a right state of mind". The Magistrate refused to allow him to change his plea. He was sentenced on the 16th December 2010 to 2 years 8 months for the burglary and a concurrent term of 2 years 8 months for the larceny offence.

[4] The appellant appeals both the conviction and the sentence. For his appeal against conviction he submits that he plea of guilty was equivocal in that it was not made voluntarily and the prosecution had made promises of a non custodial sentence. As a result the Magistrate erred in not giving proper reasons for not vacating the guilty plea.

[5] In his appeal against sentence, the appellant prays that the sentence is harsh and excessive, that it was unfairly passed as a result of a mistaken plea of guilty and lastly "that proper discount was not credited for the prolonged period of offending from 2007 to date of trial 2010".

[6] On the 15th March 2011 the State was ordered to file submissions by the hearing date, that is by 15 April 2011. They filed no submissions – a situation which is entirely unacceptable and a discourtesy to the Court. The Court can only assume that they do not wish to defend this appeal.

[7] The appeal against conviction is statute barred. Section 247 of the Criminal Procedure Decree states:

"No appeal shall be allowed in the case of an accused person who has pleaded guilty, and who has been convicted on such plea by a Magistrate's Court, except as to the extent, appropriateness or legality of the sentence."

[8] Even though the offences were committed on 29th July 2007, the plea was entered in July 2010 when the new Decree was in effect, and anyway judgment is only now being made on the appeal and therefore the transitional provisions of section 301 of that Decree apply.

[9] The appeal against conviction is dismissed.

[10] The appellant was sentenced to three years imprisonment for each offence after the magistrate carefully reviewed the appropriate mitigating and aggravating features. He then gave the appellant credit for the time he had spent in remand, leaving the total resultant sentence as being 2 years and 2 months.

[11] This sentence is properly casted and well within the tariff set in Petero Baleiwaiyevo in 2008.

[12] The appeal against sentence is dismissed as frivolous and vexatious.

Paul K. Madigan
JUDGE
At Lautoka
21 April 2011