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IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO: HAA0048 OF 2001S
(Suva Magistrates Court Cr. Case No. 1012/01)
BETWEEN:
TEVITA TUISAVUSAVU
Appellant
AND:
THE STATE
Respondent
Appellant in Person
Mr B. Solanki for the Respondent
Hearing: 17th August 2001
Judgment: 24th August 2001
JUDGMENT
On 2nd May 2001 the Appellant was convicted on his plea of guilty, of the following offence:
Statement of Offence
LARCENY: Contrary to Sections 259(1) and 262(2) of the Penal Code Act 17.
Particulars of Offence
TEVITA TUISAVUSAVU, between 27th day of March 2001 and 28th day of March 2001 at Nasinu in the Central Division, stole one taxi meter
valued at $700.00, one car radio valued at $300.00 and $10.00 in monies, to the total value of $1,010.00, the property of EDDIE WILSON.
He was sentenced to 18 months imprisonment. He appealed against both conviction and sentence, but at the hearing of the appeal, he
proceeded against his appeal against sentence only. He submits that the sentence was harsh and excessive.
State Counsel opposed the appeal, saying that the sentence was within the tariff for Larceny offences, that the Appellant was not
a first offender, and that the sentence passed reflected the gravity of the offending.
The facts outlined by the prosecution are sparse. The facts were: “on 27th and 28th March 2001 the complainant returned at 10pm after
driving taxi. Next morning he woke and found items in charge missing. He reported to the police. Investigation revealed $1000 worth
of properties recovered.”
The record then states “Facts admitted.” It is not clear what the Appellant admitted to, when the facts did not implicate him.
Section 206(2) of the Criminal Procedure Code provides:
“If the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words used by
him, and the court shall convict him and pass sentence upon or make an order against him unless there shall appear to it sufficient
cause to the contrary.”
The Criminal Procedure Code therefore requires the admitted facts to be an “admission.” If the facts do not implicate the accused,
it is difficult to read those facts as an admission.
In Vilikesa Balecala -v- The State Criminal Appeal No. HAA0062 of 1996 Townsley J considered a guilty plea to charges of Attempted Rape, and found that the facts as
read by the prosecution contain “insufficient evidence” of attempted rape. He said at page 3 of his judgment:
“The most cursory reading of the summary of facts would reveal the need for further enquiry before accepting the pleas of ‘guilty’.
The police evidence should have been called for to see if there was any other evidence available. This was not done and the Magistrate
was completely remiss in his duty in not doing so.”
His Lordship then quashed conviction and sentence. That case was however markedly different from the Appellant’s. Firstly, there was
nothing in the record to show that the appellants committed the offences. Secondly, they were not represented. Thirdly, the pleas
of guilty were taken at a special court sitting on a Saturday morning, before the appellants had been given a chance to take legal
advice.
In the Appellant’s case, he was represented by counsel and he pleaded guilty to the charge with counsel present. Secondly, when counsel
mitigated he made admissions in respect of the offence. He said (at page 6 of the record):
“Accused is 20 years. Resides in Reba Circle, Nadera. Substantial amount of property was recovered. Only $10 remains unaccounted for.
He is young. He cooperated with police. He admitted offence. He is aware of offences and admitted offence and pleaded Not Guilty
to others.
Ask for court’s consideration of plea of guilty.”
It is therefore apparent that the plea of guilty was unequivocal. The presence of counsel reinforces this. A plea of guilty amounts
to an admission of all facts material to the charge R -v- Henry [1917] VicLawRp 65; (1917) VLR 525). It is a confession of fact, and the court is entitled to convict upon it R -v- Rimmer (1972) 1 ALL ER 604). In the circumstances therefore the conviction was both regular and proper.
However, in future it is hoped that the prosecution outlines its facts carefully, disclosing evidence on each ingredient of the offence.
As to sentence, the learned Magistrate found that the Appellant had a propensity to commit breaking and entering offences. Indeed
he has 10 previous convictions for the same or similar offences.
It is clear that the Appellant deserved no leniency in the light of his record. Indeed a higher sentence could have been imposed on
him despite his guilty plea.
House-breaking, entering and larceny have reached epidemic proportions in Fiji, and call for deterrent sentences.
This appeal is dismissed.
Nazhat Shameem
JUDGE
At Suva
24th August 2001
Haa0048j.01s
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