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Vakatalai v State [2017] FJHC 228; HAA035.2016 (17 March 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA35 of 2016

[Magistrates’ Court Case No. 912 of 2016)

BETWEEN : TEVITA VAKATALAI

Appellant

AND : THE STATE

Respondent

Coram : Hon. Mr Justice Daniel Goundar

Counsel : Mr A Chand & Ms O Grace for the Appellant
Mr R Kumar for the Respondent

Date of Hearing : 22 February 2017

Date of Judgment : 17 March 2017

JUDGMENT

[1] This is a timely appeal against both conviction and sentence. Following a trial in the Magistrates’ Court, the appellant was convicted of robbery contrary to section 310(1) (a) (i) of the Crimes Decree 2009 and sentenced to 5 years and 9 months’ imprisonment with a non-parole period of 5 years. At trial, the appellant was unrepresented. His initial grounds of appeal were filed by him in person. After legal aid was approved, his counsel filed the following grounds of appeal:

APPEAL AGAINST CONVICTION

(i) That the Learned Magistrate erred in law and in fact when he convicted the Appellant on a defective charge.
(ii) That the Learned Magistrate erred in law and in fact when he convicted the Appellant when there was sufficient evidence against him in respect of the charge.
(iii) The Learned Magistrate erred in law when he failed to provide any assistance in terms of procedure and law during the trial.
(iv) The Learned Magistrate erred in law and in fact when he allowed the dock identification.

APPEAL AGAINST SENTENCE

(v) That the Learned Magistrate erred in law when passing the sentence as it was harsh and excessive.
(vi) That (sic) learned Magistrate erred in law and in fact by taking into account irrelevant considerations.

[2] The prosecution case was substantially dependent upon the complainant’s evidence. The complainant, Sean Fraser was a 41-year old male. His evidence was that on 4 June 2016, he was mugged after he came out of Onyx nightclub situated at the corner of Carnarvon and MacArthur Street. As he was walking along the MacArthur Street, the complainant took out his mobile phone to check his email. At that point, a man came and snatched his mobile phone and tried to flee the scene. The complainant responded by grabbing the thief and both men ended up in a tussle. Later the complainant identified the man who snatched his mobile phone was the appellant. The appellant’s t-shirt was ripped in the tussle. But he managed to free himself and flee from the scene with the complainant’s mobile phone, leaving his ripped t-shirt and flip flops behind. Both the t-shirt and flip flops were identified by the complainant and tendered in evidence at the trial.

[3] The complainant said the place where the tussle occurred was well lit and he saw the appellant’s face for a good two minutes from a distance of 15cm. After the appellant had fled the scene with the mobile phone, the complainant managed to flag down a police vehicle and report the robbery. After reporting the robbery, the complainant remained at the scene. After twenty minutes, the appellant returned to the scene to retrieve his t-shirt and flip flops. Shortly after, the police vehicle returned to the scene. The complainant identified the appellant to the police officers as the person who had robbed him. The appellant was arrested but the mobile phone was not retrieved. When the appellant was arrested he was wearing a shirt and a short. The value of the phone was $800.00.

Whether the charge was defective?

[4] The appellant was charged with robbery contrary to section 310(1) (a) (i) of the Crimes Decree 2009. The particulars of the offence alleged that the appellant ‘on 4^th day of June 2016 at Suva in the Central Division robbed and stole an I Phone 5c valued at $800.00 the property of the said Sean Fraser’. The appellant’s contention is that the charge was defective because the particulars did not allege that the appellant used force to steal, which is an essential ingredient of the offence. I accept that the use of force to steal is an essential ingredient of the offence of robbery contrary to section 310(1) (a) (i) of the Crimes Decree 2009. But I do not think the charge was defective.

[5] All criminal charges filed in court must comply with section 58 of the Criminal Procedure Decree 2009 (CPD). The charge must contain a statement of offence and such particulars that are necessary for giving reasonable information as to the nature of the offence charged. The statement of offence must be described in an ordinary language, avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the offence (section 61(2) of the CPD). Particulars of the offence must be set out in ordinary language, and the use of technical terms is not necessary (section 61(4) of the CPD).

[6] It has been said in many cases that that while the particulars of offence should be reasonably informative, it is not necessary slavishly to follow the section in the Act that creates the offence (Shekar v State [2005] FJCA 18; AAU0056.2004 (15 July 2005); Mudaliar v State [2007] FJCAAAU; AAU0032.2006 (23 March 2007)). Even if the particulars lack an essential element of the offence, the charge may be defective but not bad. In such a case, the question is whether the accuss prejudiced by the defect fect (McVitie (1960) 44 Cr App R 201; Skipper v R [1979] FJCA 6; Tavurunaqiwa v State (2009) FJHC 198; HAA022l.2009 (10 September 2009)).

[7] In the present case, the particulars alleged that the appellant robbed and stole the complainant’s mobile phone. Ordinarily, robbery involves stealing using force, and therefore, the word ‘stole’ was a mere surplusage. Although the particulars did not expressly state that the appellant used force, the element of force was subsumed in the definition of robbery, thus, making the charge reasonably informative for the appellant to know what was being alleged by the prosecution. In my judgment, the charge was not defective.

[8] But if I am wrong in my conclusion that the charge was not defective, I am not convinced that the appellant was prejudiced by the charge not stating that the appellant used force to steal the complainant’s mobile (see, Kirikiti v State [2015] FJCA 150; AAU005.2011 (3 December 2015)).The appellant’s case was that he was mistakenly identified by the complainant as the person who had robbed him. The issue was whether the appellant was the robber. That is how the appellant presented his case at the trial. Whether force was used or not to steal the complainant’s mobile phone was not an issue at the trial. Ground one fails.

No evidence that force was used to steal

[9] In ground two, the appellant’s contention is that he should have been acquitted at the no case to answer stage because there was no evidence that force was used to steal, which is an essential element of robbery. This ground is without merit. The evidence of force used to steal was overwhelming. The mobile phone was snatched using force from the complainant’s hand. The snatching resulted in a tussle between the complainant and the appellant. The appellant even tried to assault the complainant in order to free himself from the tussle. After resistance, he managed to free himself and flee the scene with the complainant’s mobile phone. Ground two fails.

Duty of the court to assist an unrepresented accused

[10] At trial, the appellant chose to represent himself. The court records show he carried out a competent cross-examination of the prosecution witnesses. Counsel for the appellant points out to some features of the trial which he says was unfair. For instance, initially, the complainant said that the complainant’s shirt was ripped off but when the prosecutor made reference to a t-shirt in his question, the complainant’s subsequent evidence made reference to a t-shirt and not a shirt. Counsel also points out that the trial magistrate should not have allowed the complainant to speculate that the appellant had returned to the scene to retrieve his t-shirt and flip flops.

[11] Recently, it was held in Tubuna v State [2017] FJHC 155; HAA024.2016 (28 February 2017) that while the courts have a duty to conduct a fair trial by ensuring that an unrepresented accused has understood his trial rights, there is no obligation on the courts to conduct the case for the accused. The central issue at the trial was whether the identification evidence was credible and reliable. As I have said earlier, the court records show the appellant competently represented himself. If he did not see fit to take any objection to the matters which his counsel is now complaining on appeal, I cannot see any prejudice arising from collateral evidence that was not directly relevant to the identification of the appellant by the complainant based on his facial features. The trial was fair. Ground three fails.

Dock identification

[12] Whether or not to allow dock identification is a matter of discretion for the trial court (Vulaca v State (2011) FJCA 39, AAU0038.2008 (29 August 2011). The cases are clear. The identification of an accused for the first time in the dock is an undesirable practice (R v Cartwright 10 Cr App R 219; Lotawa v State Cr App No AAU0091 of 2011; Sugu v State (2016) FJCA 69). In the present case, the appellant was not identified for the first time in the dock by the complainant. The appellant was identified to the police officers shortly after the robbery when the appellant returned to the crime scene. In these circumstances, the learned trial magistrate exercised his discretion to allow dock identification judiciously and no error has been shown in the exercise of that discretion. The learned trial magistrate assessed the reliability of the identification evidence using the guidelines laid down in R v Turnbull (1977) Q B 224 and found the evidence reliable. Ground four fails.

[13] None of the grounds of appeal against conviction have been made out. The appeal against conviction is dismissed.

Is there any error in the exercise of the sentencing discretion?

[14] The maximum penalty prescribed for robbery is 14 years imprisonment. The learned magistrate used the two-tiered approach to provide reasons for the sentence he imposed on the appellant. The learned magistrate referred to the case of Rarawa v State [2015] FJHC 324, which said the tariff for robbery (section 310(1)) was 2 to 7 years imprisonment. The learned magistrate used 4 years as his starting point, and then adjusted the sentence for mitigating and aggravating factors before arriving at the final sentence.

[15] The learned magistrate said the aggravating factor was that the offence was committed in a public place. The sentence was increased by 3 years to reflect this aggravating factor. The learned magistrate said the mitigating factors were the appellant’s personal circumstances – 27 years old and single. The learned magistrate said that the appellant had not expressed any remorse. If he had done so then he would have been entitled for a discount in sentence for his remorse. The sentence was reduced by 1 year to reflect the mitigating factors. The sentence was further reduced by 3 months to reflect the remand period. The appellant had previous conviction for a similar offence in 2012 and was sentenced to 3 years imprisonment with a non-parole period of 2 years. He was not entitled to any discount for previous good character.

[16] The main complaint against sentence is that the 4 years starting point term was excessive and the increase of 3 years to reflect the aggravating factor was harsh. The starting point of 4 years was picked from the middle range of the tariff for robbery. I do not think 4 years was an excessive term. However, I think the aggravating factor identified by the learned magistrate was erroneous. There is an error in the exercise of the sentencing discretion. Although this was a street mugging, the force used (snatching) was minimum. There was no evidence that the members of public were put at risk of violence by this crime. These facts placed the offence on the lower end of the tariff for robbery. As the Court of Appeal observed in Raqauqau v State [2008] FJCA 34; AAU0100.2007 (4 August 2008) at [12]:

The leading English authority on the sentencing principles and starting points in cases of street robbery or mugging AtAttorney Gener21’s References (Nos. 4 and 7 of 2002) (Lobhan, Sawyers and James) (the so-called 6;mobile phoe phones’ judgment). The particular offences dealt in the judgment were cterized by serious threats eats of violence and by the use of weapons to intimidate; it was the element of violence in the course of robbery, rather than the simple theft of mobile telephones, that justified the severity of the sentences. The court said that, irrespective of the offender’s age and previous record, a custodial sentence would be the court’s only option for this type of offence unless there were exceptional circumstances, ...