Alfred John H. v The State: A COMMENT

RACHEL SUBUSOLA OLUTIMAYIN

INTRODUCTION

The appellant in this case (who was unrepresented) moved the Fiji Court of Appeal to determine a very simple, important and uncommon issue. What is the proper procedure for a court to follow where an accused that appears on a multi-count indictment elects to plead guilty on some counts in the Magistrates’ Court and elects trial on other counts in the High Court? The Appeal Court held that in such cases sentencing for the counts to which he has pleaded guilty should be postponed until after he has been tried on his not guilty counts.

FACTS

The Appellant is the father of two girls E and L. E was born on 25 October 1983, and L on 20 August 1987. In October 2002 a report was lodged with the Police that the Appellant had regularly and frequently raped E with force between 1997 when she was 14 and 2002 when she was 19. It was also reported that he indecently assaulted L twice between January 2001 when she was 14, and October 2002 when she was 15. He appeared in the Lautoka Magistrates’ Court on 18 November 2002.

PROCEDURAL HISTORY

Magistrates’ Court

On 18 November 2002 the Appellant was charged in the Lautoka Magistrates’ Court with ten counts of rape, attempted rape and indecent assault. On 19 November 2002 he pleaded guilty to one count of rape against E in November 2002, and two counts of indecent assaults against L between January 2001 and October 2002. He pleaded not guilty to the other seven counts. The magistrate accepted his plea and severed the three accepted counts from the seven unaccepted counts.  He retained the accepted counts in file number 86/06, and created a new file for the seven unaccepted counts. The accused pleaded guilty to the three accepted counts in the Magistrates Court and elected a High Court trial for the unaccepted counts. He accepted the Prosecutions’ summary of facts on the three counts. After mitigating on his own behalf, he was sentenced concurrently to two years imprisonment on each of the indecent assault charges, and three years imprisonment for the rape charge. A total of three years imprisonment was imposed on him.

High Court

In April 2003, the appellant was committed to the High Court for trial on the remaining seven counts. His case was not called for hearing in the High Court until 2 November 2004.  The information was filed on 6 December 2004. Finally on 1 February 2005 he appeared in the High Court for trial. He was unrepresented. Although all eight Prosecution witnesses were present, the Judge adjourned the matter till the next day for him to get his counsel. On 2 February 2005, the matter was further stood down till 10:00am for him to arrange counsel. When the hearing resumed at 10.00am he told the court he wanted to proceed on his own and to change his plea. He also told the court that he did that on his own free will and there was no pressure on him to do so. The information in the seven counts was read to him, which he said he understood and pleaded guilty to all counts with knowledge of the seriousness of the charges. A summary of Prosecution facts was read to him. He accepted the facts. The Prosecution did not disclose that he had been dealt with for three offences, which were part of the same series of offences but disclosed the previous convictions for those offences. The Judge sentenced him to ten, nine and three year’s concurrent sentences for the seven counts, making allowance for the guilty plea, and taking into account the circumstances and manner in which the offences were committed.

Court of Appeal

Being dissatisfied with the sentence, he appealed to the Court of Appeal. 

Legal Issues

The appellant raised the following issues:
1) That his plea was equivocal because the court pressured him.
2) That the High Court breached his right to a fair trial when he was refused sufficient time to engage another counsel because his counsel withdrew. 
3) That insufficient consideration was given to the fact that he had already served a period of imprisonment for the same series of offences.
4) That the sentence was manifestly excessive.

LEGAL PRINCIPLES

Ratio Decidendi

When a solicitor knows that there are other charges against an accused, to be dealt with other than those before the court, the solicitor should ensure that an application is made to have the accused put back to be dealt with where the other outstanding charges lie. If an accused enters mixed pleas on a multi count indictment, or elects trials in different courts, sentencing on the counts to which he has pleaded guilty should be postponed until after he has been dealt with on his not guilty counts. If there are serious aggravating factors in a sexual assault case the sentence imposed on the offender should reflect the seriousness of the offending. If an accused has previously been dealt with for some offences, which were part of the same series of offences, the sentencer should take this into consideration and adjust the sentence imposed to show that the offender has been previously dealt with.
Failure to follow the correct sentencing procedure will benefit an appellant by entitling him/her to reduction or cancellation of the improper sentence imposed.

Obiter Dicta

A Judge should make allowance for a guilty plea and take into account the circumstances and manner in which an offence was committed (R v Davies [1995] Crim L.R 251, Hugman and others v R [1997] Crim.L.R.66, 348).

OUTCOME

In the High Court the accused was convicted on all seven courts on his own guilty plea, and sentenced to ten, nine and three years concurrent sentences.
On appeal, the appeal against conviction was dismissed while the appeal against sentence was allowed. The sentence of 10 years imprisonment was set aside while a sentence of 7 years imprisonment with effect from 4 February 2005 was substituted. Suppression of names order extended indefinitely.

COMMENTARY

Severance of Charges

The Magistrate severed the three accepted charges from the seven unaccepted charges and created a new file for the seven contested charges. The Court of Appeal said this was an entirely wrong procedure. There is an obligation on counsel and judges to do everything possible to ensure that all outstanding charges against a defendant are dealt with in the same court by the same judge on a single occasion (Bennett (1980) 2 Cr. App R (s) 96). In Bennett the judges of Appeal made it plain that when a solicitor and a member of the Bar knows there are other charges in other courts against the accused to be dealt with other than those before the court, they should ensure that an application is made to have the accused dealt with on all the charges in one court.  It is not clear why the State Prosecutor did not do so in this case. It seems the presiding Magistrate was unaware of this procedure when he severed the charges. A likely explanation for this blunder may be the lack of provision in the Criminal Procedure Code and Penal Code. The Criminal Procedure Code provides for joinder of counts in a charge or information, and for severance of charges in a charge or information ‘if an accused person may be embarrassed in his defense by reason of being charged with more than one offence in the same charge or information, or for any other reason’. It is silent on how the court should proceed where charges are severed as a result of electing trials in different courts. This case reminds counsel, magistrates and judges of the need to be well versed with procedural matters and ensuring compliance with procedures.

Election

The Accused elected to plead guilty in the Magistrates’ Court and elected to contest the other counts in the High Court. An accused is given the right to elect where to be tried in rape and some other offences in Fiji. The applicable principle is that if an accused enters mixed pleas on a multi-count indictment, and the prosecution does not accept the pleas; sentencing for the guilty pleas should be postponed until after he has been tried on his guilty counts. This procedure was not followed by the Magistrate, who sentenced him on the three counts before the determination of the counts in the High Court. Again the possible explanation may be that the Magistrate and prosecutor were unaware of this procedure because it is not often that an accused elects trial in the High court on a rape charge. Invariably they elect trial in the magistrates’ court where the sentencing jurisdiction is much lower. Furthermore this situation is not is not specifically provided for in the Penal Code and Criminal Procedure Code. The Court of Appeal said that the fact that the accused elected trials in both the Magistrates Court and High Court does not affect the operation of the principle set out in Blackstone’s Criminal Practice text As a result of this procedural error the appeal against sentence was allowed.

Leniency of Sentence

The Magistrate sentenced the accused to a total of three years imprisonment on the three counts of rape and indecent assault. The Fiji Court of Appeal observed that this sentence is too lenient given that the victims were the appellants’ own daughters. The Court said that they are surprised to say the least that the Director of Public Prosecutions decided not to appeal against ‘the plainly, lenient sentence imposed by the Magistrates’ Court’. It is not surprising that the Court expressed this view. The normal tariff for this type of offending is between four and five years. The Director of Public Prosecutions should have appealed the leniency of that sentence given the prevalence of this type of offending in Fiji. The Court was satisfied with the sentence of ten, nine and three years imprisonment imposed on the appellant by the High Court and described it as ‘entirely appropriate’. In Mohammed Kasim v The State  the Fiji Court of Appeal laid down seven years as the starting point in rape cases. The judge followed this guideline; he made allowances for the appellant’s guilty plea, and took into account the nature and circumstances of this offending. However the Court of Appeal set aside the sentence because of the unsatisfactory way in which two sets of sentences were imposed. The summary of facts provided to the judge in the High Court by the Prosecution made no mention at all of the fact that the Appellant had previously been dealt with for three offences which were part of the same series of offences to which he had just pleaded guilty. They placed the fact of the three previous convictions before the judge who treated the three offences as separate from those before him and regarded them as aggravative of the seven charges before him. The Court of Appeal could not overlook this procedural error by the Prosecution.

Delay in Filing the Information

The Appellant was committed for trial in the remaining seven counts in the High Court in April 2003. His case was not called in the High Court until 2 November 2004, and the information was not filed until 6 December 2004.  This was over two years after his case was disposed of in the Magistrates Court. By the time the appellant came to the High Court he had been released from prison.  The court of appeal described the delay in filing the information as ‘disgraceful’.   That is indeed too long a time to have a charge hanging over a person’s head. It is not unusual to have such lengthy delays between the defendant being committed to the High Court, call over, and filing of Information in Fiji and other jurisdictions. The problem of delay amongst other reasons led Parliament to amend section 220 on 1 November 2003. The amendment abolished committal proceedings and replaced them with transfer proceedings, which is a less complicated, and a faster method of transferring cases from the Magistrates’ Court to the High Court.  The appellant was committed in April before the amendment to section 220, since the amendment was not retrospective the appellant’s case had to await it’s turn on the long list of cases awaiting trial in the High Court. The new section 220 fast tracks transfer of cases from the Magistrates’ Court to the High Court and ultimately a shorter waiting period for those awaiting high court trials.

Loss of File

In this case by the time this case reached the Court of Appeal, a case file and other documents had been misplaced. As a result of this misplacement, the precise sequence of events, which are of particular importance in this case, could not be stated definitely by the Court of Appeal. Fortunately those important facts were not needed by the appeal court to determine any of the issues in this case. For this reason it is good and reasonable practice for parties to have back up of all documents used in trials since court files sometimes go missing before the final determination of the matter. 

Suppression of Names Order

In this case a suppression of names order under the Juveniles Act was used to protect the identity of the young complainants. It is important for the Prosecution to continue utilizing this provision to protect the identity of juveniles who now appear more than ever before in the criminal courts in Fiji particularly in sexual assault cases. The Director of Public Prosecutions’ policy requires all prosecutors to seek the order in all cases affecting children. This puts Fiji on the same plain with some neighbouring jurisdictions.

Other Comments

This decision is a timely remainder to lawyers, magistrates and judges on the procedure to adapt where an accused appears on a multi-count indictment and elects to have some charges disposed in the Magistrates’ Court and others in the High Court. The situation is not common but it happens now and again.