Home | Databases | WorldLII | Search | Feedback High Court of Fiji

State v Kunamomo [2004] FJHC 98; HAA0020J.2004S (6 May 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0020 OF 2004S

Between:

THE STATE
Appellant

And:

KEVUELI KUNAMOMO
Respondent

Hearing: 4th May 2004
Judgment: 6th May 2004

Counsel:

Mr. D. Prasad for State
Respondent in Person

JUDGMENT

The Respondent was charged with the following offence:

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1) (a) of the Penal Code, Cap 17

Particulars of Offence

KEVUELI KUNAMOMO, on the 28th day of October 2002, at Suva in the Central Division, robbed EMINONI KUMETE of a pair of shoes valued at $69.00, a gold ring valued at $48.00 and $120.00 in cash; all to the total value of $640.00, the property of the said Eminoni Kumete and at the time of such robbery did use personal violence to the said Eminoni Kumete.

On the 5th of June 2003, the Respondent pleaded guilty to the charge. The facts were read. They were that the Respondent hired a taxi to the Raiwaqa Shopping Centre. The driver asked him to pay the fare, and he refused. The Respondent punched the taxi driver, and chased him with a piece of block held in his hand. He stole $120.00 cash, a gold ring, shoes and a mobile phone to the total value of $640.

The Respondent admitted these facts and 22 previous convictions. In mitigation the Respondent expressed remorse, said he was a casual labourer at the wharf and that he had a wife who worked in a café. Then, inexplicably, the learned Magistrate said:

“(1) Pursuant to section 169 of the Criminal Procedure Code reducing charge to assault occasioning actual bodily harm.

(2) Remanded in custody till 13/6/03 – sentencing.

(3) Order that Accused’s wife be present for sentencing.”

On the 13th of June she sentenced the Respondent to 3 months imprisonment. He has now served that term.

The Director of Public Prosecutions appeals against the decision of the Magistrate to reduce the charge. The grounds are:

(a) The Magistrate erred in law in reducing the charge without an application and hearing parties, convicting the Respondent of that charge.

(b) The Magistrate erred in law when she imposed a sentence that was manifestly lenient in all the circumstances of the case.

There can be no doubt at all that the reduction of the charge has no legal or factual basis at all. The facts disclose the offence of robbery with violence, and the Respondent, according to the court record agreed to those facts.

In court, at the hearing of this appeal however, both State counsel and the Respondent agreed that there had been dispute about the facts. State counsel said that the Respondent had denied the stealing of the items but had admitted the punching of the driver. The Respondent agreed to this. This development, inexplicably, is not reflected on the court record.

If the facts were disputed, then the learned Magistrate should have vacated the plea of guilty, entered a not guilty plea and set the case down for hearing. By reducing the charge willy-nilly, without giving the prosecution a chance to call witness and prove its case, the learned Magistrate was in error. Section 169 of the Criminal Procedure Code gives no power to convict of a lesser offence on a guilty plea. In these circumstances the learned Magistrate should have either entered a not guilty plea, or asked the prosecution if they wished to amend the charge to substitute it with the lesser offence.

Because both parties agree that there was a dispute of the facts, entering a conviction for robbery with violence at this stage is not an option. I have no alternative but to quash the conviction and sentence.

Result

The appeal succeeds. The decision of the learned Magistrate to convict of an alternative offence is quashed as is the consequent sentence.

The Respondent has already served a sentence of three months, and the offence which is not the most serious of its kind, is now 1 year and 6 months old. I consider that to order a re-trial would be unjust. No re-trial is ordered.

Nazhat Shameem
JUDGE

At Suva
6th May 2004