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Bulitaiwaluwalu v The State [2005] FJHC 144; HAA0042J.2005S (17 June 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal Nos: HAA0042-044 of 2005S

Between:

TOMASI BULITAIWALUWALU
Appellant

And:

THE STATE
Respondent

Hearing: 10th June 2005
Judgment: 17th June 2005

Counsel: Appellant in Person
Mr. D. Prasad for State

JUDGMENT

The Appellant, who is serving a total term of 2 years and 6 months, originally appealed against this total term in relation to Criminal Cases No. 2195/02, 137/05, and 1652/04. However at the hearing of this appeal, his only complaint was in respect of his conviction in Case No. 2195/02. He said that he did commit the other offences, and accepts the sentences passed in respect of them, but said that he did not commit the offence in 2195/02 and only pleaded guilty out of confusion.

The charge in this case reads as follows:

Statement of Offence

LARCENY OF PERSON: Contrary to Section 271 of the Penal Code, Act 17.

Particulars of Offence

TOMASI BULITAIWALUWALU, on the 8th day of September 2002, at Nasinu in the Central Division stole a handbag valued at $20.00 and $200.00 cash all to the total value of $220.00 from the person of Sonia Sahnaaz Bibi d/o Mohammed Sharif.

When the charge was first read to the Appellant, on the 8th of November 2002, he pleaded not guilty to it. He was then served with disclosure, and the case was adjourned for mention. A hearing date was then set for the 6th of June 2003, but the prosecution was unable to contact the complainant. There were several other mentions. On one occasion the Appellant failed to attend court on time and was fined $50 for the breach of bail. He then failed to appear on another occasion and was finally brought to court on a bench warrant on the 19th of January 2005. He then told the court that he was changing his plea. The record reads:

“I am changing my plea on my own free will. Not forced.

Charge read and explained to Accused and understood.

Plea: Fully understand Guilty plead. Guilty on own free will. Not forced or influenced by anyone.

Facts: Refer to typed facts read in court explained to accused and understood. Tendered as Exhibit 1.

Accused: I admit facts.

Previous Conviction: 14 admitted.

Mitigation: Ask for forgiveness. Ask for 2nd chance. Promise I will not come back to Suva again.”

Sentence was then delivered on the 15th of February 2005. The facts outlined by the prosecutor were that on the 8th of September 2002 at 6.45pm at Vatoa Road, Narere, the Appellant grabbed the handbag of Sonia Sahnaz Bibi, a 20 year old unemployed woman. At the time, she was sitting inside their car with her husband when the Appellant came beside the car and grabbed the bag from the complainant. The complainant was able to identify the singlet of the Appellant. She reported the matter to the police. When a police officer attended the scene the Appellant was at the junction of the road, and the complainant identified the Appellant to him. He was then arrested and interviewed. He denied that he had grabbed the bag. He was charged and bailed to appear in court.

If this matter had resulted in a trial, no doubt the complainant would have been vigorously cross-examined on the identification evidence. This was a fleeting glance identification based on clothing, and the incident occurred at night. There was one light on at the place of the incident. Certainly, it would not have been an overwhelming case for the prosecution. However, when the accused person admits the facts after an informed plea of guilty, the prosecution does not have to prove anything beyond reasonable doubt. All that is required is that the facts disclose the offence charged, and that the accused agrees to them.

In this case, the learned Magistrate with her customary thoroughness and caution, ensured that the Appellant understood what he was pleading guilty to. She asked if he was pleading guilty of his own free will. He said he was. When the facts were read out, he admitted that he was the person who had grabbed the complainant’s handbag. He then expressed remorse for the incident. Clearly, this was an unequivocal plea of guilty. It occurred, not at first call, when accused persons may feel confused especially without the benefit of consulting a lawyer or a relative, but 2½ years after he was first charged, and 2½ years after he received the witness statements from the prosecution. I cannot accept his submission that his plea of guilty arose out of confusion. He pleaded guilty to other offences but the guilty pleas on those were dealt with on separate files and on separate days.

The Appellant’s appeal against conviction is dismissed. He did not pursue an appeal against sentence. However, a perusal of all the files submitted to the High Court show a pattern of breaking and entering, some of them with other offenders. He has a history of larceny and breaking and entering offences. He received one year terms for two files, and a 6 month suspended term was activated in a third. They are all to be served consecutively. His total term is two years and six months. I do not consider this sentence to be excessive or unprincipled.

This appeal is wholly dismissed.

Nazhat Shameem
Judge

At Suva
17th June 2005