IN THE HIGH COURT OF FIJI
AT LABASA
[APPELLATE JURISDICTION]

CRIMINAL APPEAL CASE NO. HAA 11 OF 2020
(Magistrates’ Court Case No. 567 of 2018)

BETWEEN:		TANIELA KOROI
APPELLANT
AND:			THE STATE
RESPONDENT

Counsel:	Appellant in Person
		Ms A Vavadakua for the Respondent

Date of Hearing:	18 May 2020
Date of Judgment:	22 May 2020

JUDGMENT

[1]	This is an untimely appeal against conviction and sentence. 

[2]	The appellant was charged with one count each of assault causing actual bodily harm, 	breach of domestic violence restraining order and breach of bail conditions. On 7 	December 2018, he appeared in the Magistrates’ Court and pleaded guilty to the charges.  	On 25 February 2020, he was sentenced to a total term of 20 months’ imprisonment with 	a non-parole period of 14 months.

[3]	The facts of the case are follows.

[4]     The victim is the de-facto partner of the appellant. The couple is in their early thirties. In the early hours of 14 October 2018, the appellant dragged the victim out of her house and took her to a bus shelter. Upon reaching the bus shelter, the appellant punched the victim several times on her mouth, neck and head. After assaulting her he left her at the bus shelter. When she returned home and was inside her house, the appellant returned and made verbal threats to kill and assault her inside her house. The matter was reported to police and the victim was medically examined. She sustained an abrasion on her tongue. The appellant assaulted the victim at a time when he was subject of a DVRO and bail conditions not to interfere with her.  

[5]	When the appellant was sentenced on 25 February 2020, he was serving a pre-existing 	sentence in relation to an offence of assault on the same victim. Since the learned 	magistrate did not direct the new sentence to be served consecutively, both sentences 	were required to be served concurrently under section 22 (1) of the Sentencing and 	Penalties Act.

[6]	The appellant’s hand written Notice of Appeal is dated 21 April 2020. By that time the 	appeal was out of time by one month. However, the delay is excused because the period 	of filing was affected Covid-19 lockdown. There is no prejudice to the State if an 	enlargement of time is granted.

[7]	The most important consideration is whether the appeal has merits. 

[8]	Section 247 of the Criminal Procedure Act prohibits an appeal against a conviction 	arising from a guilty plea in the Magistrates’ Court. However, there are circumstances in 	which an appeal may lie against conviction arising from a guilty plea. One of the 	instances is when there is some evidence of equivocation on the record (Rex v Golathan 	(1915) 84 L.J.K.B 758, R v Griffiths (1932) 23 Cr. App. R. 153, R v. Vent (1935) 25 Cr. 	App. R. 55). 

[9]	Further, a guilty plea must be a genuine consciousness of guilt voluntarily made without 	any form of pressure to plead guilty (R v Murphy [1975] VR 187, Meissner v The Queen 	[1995] HCA 41; (1995) 184 CLR 132).

[10]	In Maxwell v The Queen (1996) 184 CLR 501, the High Court of Australia said at p. 511:

	The plea of guilty must however be unequivocal and not made in 	circumstances 	suggesting that it not a true admission of guilt. Those 	circumstances include ignorance, fear, duress, mistake, or even the desire 	to gain a technical advantage. The plea may be accompanied by a 	qualification indicating that the accused is unaware of its significance. 	If it appears to the trial judge, for whatever reason, that a plea of guilty is 	not genuine, he or she must (and it is not a matter of discretion) obtain an 	unequivocal plea of guilty or 	direct that a plea of not guilty be entered.

[11]	In Michael Iro v Reginam FLR 12 the Court of Appeal explained the duty of the court to 	exercise vigilance before accepting a plea of guilty from an unrepresented accused at 	104: 

	There is a duty upon a trial judge, where an accused person 	is unrepresented, to exercise 	the greatest vigilance to ensure that 	the accused person fully comprehends exactly what the plea of guilty 		involves.
.
[12]	According to the court record, the appellant entered his guilty pleas freely, after waiving 	his right to counsel. He admitted the facts in support of the charges and then presented his 	mitigation. At no stage he indicated to the learned magistrate that he was not exercising 	his free will to plead guilty. For the appellant now to claim that he pleaded guilty out of 	convenience to bring a closure to the case has no bearing to his decision to plead guilty to 	the charges freely before the learned magistrate. The appeal against conviction has no 	merit.
 
[13]	At the hearing, the appellant’s only complaint against sentence was that the learned 	magistrate should not have imposed a non-parole period. The learned magistrate 	exercised his discretion under section 18(3) of the Sentencing and Penalties Act to fix a 	non-parole period. The non-parole period fixed is six months less than the head sentence 	in compliance with section 18(4) of the Sentencing and Penalties Act.  

[14]	The learned magistrate noted that the appellant assaulted his de-facto partner on a 	second 	occasion in breach of a DVRO and bail conditions. The appellant’s repeated use of 	violence against his partner called for a deterrent sentence. The head sentence and the 	non-parole period that the learned magistrate imposed were to give effect to the 	principle of deterrence applicable to the appellant. There is no error in the exercise of the 	sentencing discretion. 

[15]	For these reasons, an enlargement of time is granted but the appeal is dismissed. 

							…………………………….. …….
							Hon. Mr Justice Daniel Goundar

Solicitors:
Appellant in Person
Office of the Director of Public Prosecutions for the Respondent