IN THE HIGH COURT OF THE FIJI ISLANDS
APPELLATE JURISDICTION
AT LABASA

CRIMINAL APPEAL CASE NO: HAA 006 OF 2008

BETWEEN

FAGA MATA
Appellant

AND

THE STATE
Respondent

Appellant in Person
Ms Saininiu Fa’alogo-Bull for the Respondent

Date of Ruling: 19 November 2008.

JUDGMENT

1.	Faga Mata, your are the appellant in this proceedings.

2.	On 29 November 2007 you appeared in the Magistrates Court at Labasa charged with another on one count of Robbery With Violence, contrary to section 293(1) of the Penal Code Cap17 and one count of Unlawful use of Motor Vehicle, contrary to section 292 of the Penal Code Cap17. You pleaded guilty to both counts and you were convicted as charged after you admitted the summary of facts outlined in court to you.

3.	On 10 July 2008 you filed your petition of appeal against conviction and sentence. Your appeal was out of time, but leave was granted to allow you to appeal. You have now filed your appeal grounds by letter dated 30 October 2008.

4.	In your letter of 30 October 2008, you claimed that the trial Magistrate erred in law and fact as regards his approach on the law of joint enterprise and whether there was sufficient evidence to support conviction. This claim must have encouraged by this court’s earlier ruling in the appeal of your co-accused Kelemedi Kalouniviti.

5.	Unlike Kelemedi Kalouniviti, you pleaded guilty to the charges that you were charged with. This means that you admitted a summary of facts that was read to you in court and upon which you were convicted. Your claim that there is insufficient evidence to find you guilty is incorrect because there was no trial held against you. The evidence against you is your guilty plea and the admitted facts that was summarised in court.

6.	Under section 309 of the Criminal Procedure Code Cap 21, an appellant who had pleaded guilty to charges he faced in the Magistrates Court has no right of appeal against conviction, except if he can demonstrate that

i)	his guilty plea is equivocal;
ii)	where the summary of facts does not disclose an offence;
iii)	where the offence charge is not known in law.

See: Drava v The State [2003] FJHC 13; HAA 0095 of 2002 (31 January 2003) per Shameem J.

7.	In reviewing your petition of appeal and your other written submission, I note that you have not submitted any reasonable basis on which your guilty plea may be considered to be equivocal. The onus is on you to provide the basis of your claim to support that would challenge the validity of your plea: Kuruka Bogiwalu & Anor v The State [1998] FJCA; AAU 0006 of 1996S(15 May 1998)

8.	On the contrary from the court record, it is clear that you pleaded guilty after it was made clear to you what the charges meant and you indicated to the court that you understood them. There is no basis from the court record, nor from your submission in support of this appeal to support his claim that his guilty plea was any thing but given of his own free will.

9.	On that basis I find that the appellant’s guilty plea was unequivocal and not subject to appeal.

10.	On the issue of joint enterprise in criminal action as regards the case against this appellant, it does not arise because you admitted the offence for which you were charged with. It is noteworthy that the uncontradicted evidence of PW1 Kishore Chand s/o Brij Lal was that it was this appellant who held small knife to his neck while he stole $40.00 from him that was kept in the coin drawer of the taxi.

11.	As regards the appeal against conviction for the Robbery With Violence charge, there is no merit in the appellant’s submission. It is dismissed.

12.	The State has submitted that the facts admitted to by the appellant in support of the Unlawful Use of a Motor Vehicle charge does not support such charge. 

13.	I have reviewed the summary of facts admitted to by the appellant after he pleaded guilty. I agree that they do not support the charge of Unlawful Use of a Motor Vehicle contrary to section 292 of the Penal Code Cap 17. There is no suggestion in the summary of facts that this appellant ‘unlawfully took or converts to his own use’. He was in the taxi lawfully as a passenger and at no time did he take the car or drive it away without the consent of the driver/owner.

14.	The sentence passed by the trial Magistrate was contrary to law in that the maximum sentence for an offence under section 292 of the Penal Code Cap 17 is 6 months imprisonment. In this case the appellant was sentenced to 12 months imprisonment to be served consecutive to the sentence of 3 years 2 months for the robbery with violence. The sentence of 12 months imprisonment is an unlawful sentence in that the maximum sentence that any court may impose for this offence is 6 months imprisonment. This was a blatant mistake by the trial Magistrate.

15.	The conviction for this count is quashed and the sentence passed by the trial Magistrate is also quashed. 

16.	The appeal against sentence of 4 years 2 months imprisonment passed by the trial magistrate on 25 March 2008 is recorded at page 57 of the Court Record. There is no copy of the sentence ruling against this appellant, in the Court Record prepared for this appeal.

17.	Given my finding that the conviction against the Unlawful Use of Motor vehicle was a nullity, the sentence passed for that offence is similarly set aside. This would in turn mean that the sentence appeal is against the 3 years 2 months imprisonment for the robbery with violence charge.

18.	On the basis of recent case law in Opeti Koro & Anor v The State [2007] HAA 106/2007; Basa v The State [2006] FJCA 23; Joji Waqasaqa v The State [2006] FJSC 18 (CAV 009/2005) and on the facts which the appellant admitted, the sentence of 3 years 2 months imprisonment is below the sentence tariff and it is not harsh and excessive. It is a lenient sentence.

19.	The appeal against sentence has no merit and is dismissed.

ORDERS

20.	I make the following orders:

i)	the appeal against conviction with regard to the count of robbery with violence has no merit and is dismissed;

ii)	the appeal against conviction with regard to the count of Unlawful Use of Motor Vehicle succeeds and the conviction on this count is quashed;

iii)	The appeal against sentence succeeds to the extend that the consecutive sentence of 12 months imprisonment against the charge of Unlawful Use of Motor vehicle is quashed;

iv)	the remaining sentence of 3 years 2 months effective from 25 March 2008, for the robbery with violence charge is upheld. 

Isikeli Mataitoga
JUDGE

At Labasa
19 November 2008.