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Court of Appeal of Fiji |
IN THE COURT OF APPEAL
[On Appeal from the High Court]
CRIMINAL APPEAL NO. AAU 005/2011
[High Court Case No. 139 of 2010]
BETWEEN:
ALIFASI KIRIKITI
Appellant
AND:
THE STATE
Respondent
CORAM : S. Fernando JA
Madigan JA
P. Fernando JA
Counsel : Mr. M. Yunus for the Appellant
Mr. S. Vodokisolomone for the Respondent
Date of Hearing : 16 November 2015
Date of Judgment : 3 December 2015
JUDGMENT
Shavindra Fernando JA
[1] This is a renewed application for leave to appeal and an appeal from a conviction and sentence in the Magistrates court at Suva exercising extended jurisdiction. The appellant was charged with one count of aggravated robbery contrary to Section 311(1) (a) of the Crimes Decree 2009. The appellant was convicted on 4 January 2011 and sentenced on 10 January 2011 to a term of imprisonment of 8 years and 6 months with a non parole term of 7 years.
[2] The appellant applied for leave to appeal to the Court of Appeal against conviction and sentence. The application for leave came before a Justice of Appeal on 17 March 2014 and a ruling was subsequently delivered on 7 April 2014. The learned Justice of Appeal concluded that the grounds were frivolous since it could not “possibly succeed” therefore the application for leave was refused. The appellant then invoked the jurisdiction of the Supreme Court under Section 35(2) of the Court of Appeal Act Cap.12. The matter was taken up for hearing on 6th of August 2015 and judgment was delivered on 20 August 2015 whereby the appeal was allowed, the order of the single judge of the Court of Appeal quashed and the petitioner’s appeal against conviction on the question of law alone and the application for leave to appeal the sentence on the ground that the sentence was harsh and excessive was remitted to the Court of Appeal for determination.
Facts
[3] At about 9 pm on 9th July 2010 the complainant was walking towards Suva bus stand after having a few drinks when one unknown Fijian boy called him behind the canteen near Ritz nightclub. He approached the person to see what he wanted when two others came from the other side, one of them punched him. He fell down and two persons started to touch his pockets. He identified the appellant who was wearing the yellow T-shirt as the person who took his money through the lights from the canteen, nightclub and nearby shop. He had $345.00 with him which was stolen. The appellant was arrested from the scene by the Police officers few minutes after the incident on being pointed out by one of the eye witnesses. After his arrest the Police took him to the Central Police Station. No money was found on him. No identification parade was held as the appellant was identified by the prosecution witnesses, at the scene of the crime.
[4] The appellant gave evidence in the trial and denied knowledge of any involvement in the crime.
Appellant’s Submission Against Conviction
[5] The appellant’s submission before this court was that the learned trial Magistrate erred in law in convicting him for aggravated
robbery when the said offence was defective. The appellant’s charge reads:
STATEMENT OF OFFENCE
Aggravated Robbery, contrary to Section 311(1) (a) of the Crimes Decree Number 44 of 2009.
PARTICULARS OF OFFENCE
ALIFASI KIRIKITI on the 9th day of July 2010 at Suva in the Central Division, with others stole cash $345.00 from one ASHWANT NAGAIYA s/o NAGAIYA
The offence of aggravated robbery is set out in Section 311 (1) (a) and (b) of the Crimes Decree 2009 as follows:-
“A person who commits an indictable offence if he or she;
(a) Commits a robbery in company with one or more other person; or
(b) Commits a robbery and at the time of the robbery, has an offensive weapon with him or her.
[6] The definition of the word ‘robbery’ is provided in Section 310 of the Crimes Decree 2009.
Section 310 – (1) A person commits an indictable offence (which is triable summarily) if he or she commits theft and –
(a) Immediately before committing theft, he or she-
- (i) Uses force on another person; or
- (ii) Threatens to use force then and there on another person- with intent to commit theft or to escape from the scene; or
(b) At the time of committing theft, or immediately after committing theft, he or she-
- (i) Uses force on another person; or
- (ii) Threatens to use force then and there on another person- with intent to commit theft or to escape from the scene.
[7] The appellant did not dispute the fact that the charge against the appellant contained a statement of offence and particulars of offence and also that reference was made to the correct sections of the law. However his contention was that the particulars of offence did not reflect the provisions of Section 310 and 311 of the Crimes Decree 2009. The charge reads that the appellant “with others stole $345.000 from one Ashwant Nagaiya”.
[8] The gravement of the appellant’s complaint is that the particulars of offence did not mention anything about the force or threat of use of force either immediately before the theft or at the time of the theft or immediately after the theft. Counsel for the appellant made reference to Section 14 (2) (b) of the Constitution of the Republic of Fiji. Section 14 (2) (b) provides;
“Every person charged with an offence has the right to be informed in legible writing, in a language he or she understands, of the nature of and reasons for the charge.”
Therefore the counsel for the petitioner submitted that the omission to use the word “force” which was necessary to be specified in the particulars of the offence, made the charge defective and since he was tried on a defective charge his rights guaranteed under Section 14(2) (b) were violated. On that ground counsel for the appellant urged court to allow the appeal and quash the conviction and sentence enforced by the Magistrate’s court.
[9] The counsel for the respondent in reply to this ground of appeal contended that the statement of offence (page 155 of the Court Record) indicated that the appellant was charged under Section 311(1) (a) of the Crimes Decree 44 of 2009.
[10] The counsel for the respondent conceded that the omission of the word ‘force’ made the indictment defective or imperfect however it did not make the indictment bad, and therefore lawful as no substantional miscarriage of justice was caused to the appellant. Therefore the counsel for the respondent urged court to apply the proviso to Section 23(1) (a) of the Court of Appeal Act, and dismiss the appeal.
[11] Having considered the submissions of both counsel for the appellant and the respondent and being satisfied that leave should be granted on the question of law alone against the conviction and on sentence the ground that the sentence was harsh and excessive, this court grants leave on those two grounds and proceed to hear the appeal.
[12] The respondent in his submissions has conceded that the charge is defective or imperfect. The court will now consider the issues that the court will have to determine in this appeal.
(i) Can this court allow to maintain a conviction that is based on an indictment that was defective or imperfect;
(ii) Was the appellant embarrassed or prejudiced due to the defect in the judgment;
(iii) Was there a miscarriage of justice on any ground?
[13] For the Court of appeal to allow the appeal one of the grounds set out in Section 23 (1) (a) of the Court of Appeal Act has to be satisfied.
[14] The grounds on which an appeal can be allowed and the verdict is set aside under Section 23(1) (a) are as follows:-
(a) On the ground that it is unreasonable or cannot be supported having regard to the evidence
(b) On the ground of a wrong decision of any question of law
(c) On any ground there was a miscarriage of justice
[15] In the event one or more of the above grounds are satisfied the court shall allow the appeal and set aside the verdict.
[16] Unless the appellant can satisfy this court on the ground of appeal raised against conviction the court shall dismiss the appeal under the provisions of Section 23(1) (a) of the Court of Appeal Act Cap 12.
[17] In this case the appellant has to satisfy the court that due to the defective or imperfect indictment there was a miscarriage of justice. If he succeeds his appeal will be allowed. If he fails his appeal will be dismissed.
[18] Even though the State has submitted that court should consider the proviso to Section 23(1) (a) and (b), I am of the view that the proviso needs to be considered only if the points raised in that appeal against conviction or acquittal by an appellant is decided in favour of an appellant. In such cases if the respondent can establish that there was no substantial miscarriage of justice the proviso can be applied.
The proviso reads:
“provided that the court may, notwithstanding that they are of opinion that the point raised in the appeal against conviction or against acquittal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has occurred” (emphasis added).
[19] I will now proceed to deal with the issues mentioned above.
(i) can this court allow to maintain a conviction that is based on an indictment that was defective or faulty;
In Skipper v Reginam [1979] FJCA 06; Criminal Appeal No. 70 of 1978 it is stated:
“Section 3 of the Indictments Act 1915 (U.K.) is, for the purposes of the present question, in the same terms concerning the framing of charges as section 123 of the Criminal Procedure Code. A line of cases has now established that, if it is clear that no embarrassment or prejudice was caused by an omission to state the required particulars correctly, the proviso would be applied and the appeal would be dismissed. It is sufficient to cite instances in R. v McVitie, 44 CA.R. 201; R v Power 66 C.A.R. 159; R v. Yule [1942] CthArbRp 217; 47 C.A.R. 229 and R. v. Miller and Hanomer (1959) Crim. L.R. 50. Clifford Nelson [1949] CthArbRp 419; 65 C.A.R. 119 in another case and further reference will be made to it”.
The Respondent submitted that the decision made in the Skipper’s case is relevant and is similar to this case where there was an omission to state the required particulars of the charge correctly. However the respondent submitted that it was clear that the omission caused no embarrassment or prejudice to the appellant, as evidence of the elements of the offence particularly ‘violence’ and ‘force’ were presented by the prosecution through its witnesses during the trial of this case. As such the respondent submitted that the proviso under Section 23(1) (a) and (b) of the Fiji Court of Appeal Act can be applied in this case and dismiss the appeal by the appellant as there was no substantial miscarriage of justice caused.
The irregularity in the particulars of the offence caused by the prosecution in this case is the failure to include the word “force” or the word “threatens to use force”. However, in this case the appellant was charged on the correct provision of the statute and that is Section 311(1) (a) of the Crimes Decree 2009. The accused had pleaded not guilty and the matter had proceeded to trial in the Magistrates Court. The statement of the offence clearly states that the offence is robbery.
[20] In Singh v Reginam [1967] FJCA 4; [1967] 13 FLR 27 (23 February 1967)
“The Court of Appeal discussed and referred to the case of R. v. McVitie [1960] 2 All ER 498, in which the statement of offence was "Possessing explosives contrary to s.4 (1) of the Explosive Substances Act 1883" which makes it a felony "knowingly" to have in a person's possession explosive substances in particular circumstances. The word "knowingly" was omitted from the particulars of the offence but the Court of Criminal Appeal, consisting of five judges held that the omission did not make the indictment bad but only defective or imperfect. It was therefore lawful, no substantial miscarriage of justice having occurred, to apply the proviso. McVitie's case was followed in R. v. Yule (1963) 47 Cr. App. R. 229”.
The McVitie’s case is similar to this case where there was an omission in the particulars of the charge. It was decided by the Court of Criminal Appeal that the omission did not make the indictment bad but only defective or imperfect. It was therefore lawful, no substantial miscarriage of justice having occurred, to apply the proviso.
[21] I am therefore of the view that a conviction can be maintained even though there was a defect in the indictment. However before doing so the court has to satisfy itself if there was any embarrassment or prejudice caused to the appellant which resulted in a miscarriage of justice.
(ii) was the appellant embarrassed or prejudiced due to the defect in the judgment;
[22] It is observed that in the evidence lead by the prosecution, evidence of ‘force’ was lead. The complainant Ashwant Nagaiya at pages 162 of the court record, Miliakere Vuluirewa (page 166 of the court record) and Selina Waqa (p170 of the court record) gave such evidence; namely of pushing the victim to make him fall and punching him at the time the money was taken from him.
[23] The appellant’s written submission dated 15th October 2015 at page 9 paragraph r states:
“the evidence in the trial was that some youth stole $345.00 from the complainant after he was assaulted by a youth. Force was used however there is no indication of force in the charge which was an essential ingredient of the charge.”
[24] Further in his defense the appellant’s position was that he was wrongly identified by the witness. The appellant whilst cross examining the prosecution witnesses repeatedly used the words ‘robbed’. (pages 164,168,169 &173 of the court record).
[25] Therefore I am of the view that the omission by the Prosecution to use the words ‘force’ or ‘robbed’ in the particulars of the offence, did not cause the appellant to suffer any embarrassment or prejudice.
(iii) was there a miscarriage of justice on any ground?
[26] Since the appellant was in no way prejudiced due to the particulars of the offence being defective or imperfect by the omission of the words ‘force’ or ‘robbed’ in the particulars of the offence, I hold that there was no miscarriage of justice in this case.
[27] Having decided the issues in the manner set out above, I conclude that the appellant has failed to satisfy any of the grounds mentioned in section 23(1) (a) of the Court of Appeal Act which warrants this court to allow his appeal. As such I hold that the appeal on the conviction is dismissed.
Ground of Appeal against Sentence
[28] The ground raised by the appellant is that his sentence was harsh and excessive.
The appellant was imposed a sentence of 8 years and 6 months imprisonment with a non-parole period of 7 years. The Supreme Court in Naisua v State [2013] FJSC 14 CAV 0010 of 2013 at Para 19-20 states the following:
“[19] It is clear that the Court of Appeal will approach an appeal against sentence using the principles set out in House v The King [1936] HCA 40; (1936) 55 CLR 499 and adopted in Kim Nam Bae v The State Criminal Appeal No.AAU0015 at [2]. Appellate courts will interfere with a sentence if it is demonstrated that the trial judge made one of the following errors:
(i) Acted upon a wrong principle;
(ii) Allowed extraneous or irrelevant matters to guide or affect him;
(iii) Mistook the facts;
(iv) Failed to take into account some relevant consideration.
[20] When considering the grounds of appeal against sentence, the above principles serve as an important yardstick to arrive at a conclusion whether the ground is arguable. This point is well supported by a decision on leave to appeal against sentence in Chirk King Yam v The State Criminal Appeal No.AAU0095 of 2011 at [8]-[9]. In the present case, the learned judge's conclusion that the appellant had not shown his sentence was wrong in law was made in error. The test for leave is not whether the sentence is wrong in law. The test is whether the grounds of appeal against sentence are arguable points under the four principles of Kim Nam Bae's case."
[29] In Samuel Donald Singh v State Crim. AAU15 and 16 of 2011 Calanchini P in the Court of Appeal said:
"....there is ample authority in this Jurisdiction for concluding that the appropriate tariff for robbery with violence is now 10 to 16 years imprisonment. In selecting 10 years as a starting point the learned trial Judge has started at the lower end of the range".
[30] On page 128 of the Court record paragraph 12 the trial Magistrate said the following:
"In view of the judicial precedents and provisions of sentencing and penalties Decree. I now draw my attention to determine the starting point for you. This is a planned gang Robbery at a public place in the night. In line with the above sentencing guidelines and principles I select8 years period as starting point".
[31] The learned trial Magistrate then sets out the aggravating factors on paragraph 13 on page 128 and said:
"You committed this offence in a joint enterprise. I find this is a well calculated planned gang robbery. You with three others waited for opportunity and once you saw the drunken victim on his way to the bus stand, all of you carried out your pre-planned robbery in a most scandalous manner. By virtue of the principle of joint enterprise each one of your culpability and degree of responsibility for inflicting of violence and robbing the complainant same as of your accomplices."
[32] The learned Trial Magistrate on page 129 at paragraph 14 went further to state:
"The impact of the offence on the victim must be horrified experience as he was suddenly surrounded by gang of four youth, assaulted and robbed This dreadful experience remains with him till the rest of his life."
[33] In this case the Robbery was carried out by the appellant with others against the complainant who was drunk and walking in the streets of Suva. According to the facts there was violence used when the appellant and others ganged up on the complainant and after forcefully punching and making him fall they put their hands inside the complainant's trousers pocket and removed cash from him.
[34] The aggravated robbery in this case is of a street mugging type robbery where it was committed in a group against the complainant.
[35] Even though the appellant submits that there was no pre-plan to this incident going by the evidence in the case the learned Magistrate cannot be faulted for coming to the conclusion that there was a pre-plan to this robbery.
[36] The respondent has cited the following three cases;
"Lilo v State[2008] FJSC 36; CAV 0006.2007 (25 February 2008) the Supreme Court had agreed with the trial judge sentencing remarks who ordered a sentence of 5 years to be imposed against the petitioner for street mugging robberies. The sentence was further reduced to 4 ½ years after time spend in custody was deducted from the total sentence.
Raqauqau v State [2009]FJSC 2; CAV 0023.2008S (10 February 2009) the Supreme Court upheld a sentence of 4 years imposed by the High Court and dismissed the appeal against sentence by the petitioner for "street mugging robberies."
Caniogo v State [2013]FJCA 60; AAU 115.2011 (28 June 2013) A sentence of 3 years with a non-parole period of two years was upheld by higher courts and was not changed concerning "street mugging robberies".
However it has been submitted by the respondent that in these cases the appellants were initially charged with robbery with violence and the sentence imposed was in line in the tariff available to the magistrate before the offence of aggravated robbery came into existence in 2010. As such the said cases are not of much persuasive value.
[37] In the recent case of Wise v The State; [2015] FJSC 7; CAV 0004.2015(24th April 2015);
The Supreme Court considered a special leave to appeal, petition against the sentence of seven years for aggravated robbery. The petitioner in this case had pleaded guilty. There it was stated by Gates, CJ:
"[25] The matter does not end there. We believe that offence of this nature should fall within the range of 8 to 16 years imprisonment..."
And also,
"[27] It is our duty to make clear that this type of offences will be severely disapproved by the Courts and be met with appropriate heavy terms of imprisonment.... ".
Conclusion
[38] Considering all the above cases and the facts of this case including the gravity of the offence I am of the view that the sentence imposed cannot be held to be harsh or excessive.
Madigan JA
[39] I have read in draft the judgment of S. Fernando JA and I agree that the appeals against conviction and sentence should be dismissed for the reasons he gives.
Priyantha Fernando JA
[40] I have read the draft judgment of S. Fernando JA and I agree with it.
The Orders of the Court are:
Hon. Mr. Justice Shavindra Fernando
JUSTICE OF APPEAL
Hon. Mr. Justice Paul Madigan
JUSTICE OF APPEAL
Hon. Mr. Justice Priyantha Fernando
JUSTICE OF APPEAL
Solicitors:
Office of the Legal Aid Commission for the Appellant
Office of the Director of Public Prosecutions for the Respondent.
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