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Chand v State [2008] FJHC 30; HAA01.2008 (29 February 2008)

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

Criminal Appeal No HAA 01 of 2008

BETWEEN

SUBHASH CHAND
Appellant

AND

THE STATE
Respondent

Mr. Ami Kohli for the Appellant
Mr. Tevita Muloilagi for the Respondent

Hearing: 25 February 2008
Ruling : 29 February 2008.

RULING

1. Subhas Chand, the appellant was charged and convicted of one count of Act with Intent to Cause Grievous Bodily Harm, contrary to section 224 of the Penal Code Cap 17. On the 12 November 2007, he was sentenced to 6 months imprisonment by the learned Magistrate.

2. By a Petition of Appeal dated 29 November 2007, the appellant alleges several grounds on which he claims the learned Magistrate has erred in law and fact in finding him guilty of the charge. He appeals against conviction and sentence. In summary the appellant’s grounds are:

i) The learned Magistrate erred in law and fact in failing to advise the appellant to seek legal advise given that the offence he was charged with is very serious;
ii) the guilty plea was influenced by a police officer;
iii) the failure to adjourn the case to allow appellant to seek legal assistance;
iv) The sentence should have been suspended;
v) The sentence of 6 months imprisonment is harsh and excessive.

3. I am grateful for the written submissions filed in Court by both counsel in this appeal. I have carefully considered these and those made orally during the hearing of the appeal.

4. It should be pointed out that under section 309 of the Criminal Procedure Code Cap 21, there is no right of appeal against a decision of the Magistrate Court where the appellant was convicted following s guilty plea. On the face of the record in the Magistrate Court trial, the appellant pleaded guilty and was convicted.

5. In the context of this case, unless it can be shown to the satisfaction of the court that the guilty plea was entered in circumstances that render it equivocal, the court will not consider any submission challenging the conviction. The following guideline statement was made by the Court of Appeal in Kuruka Bogiwalu & Ifereimi Nakauta v The State [1998] AAU 006 of 1996:

‘ If it can be demonstrated that an accused person has pleaded guilty in a manner that is in anyway equivocal or uncertain, or that the accused entered the plea when he did not have a full understanding of the effect of the plea, namely that he was admitting that he committed the offence with which he has been charged, an appeal against conviction may be entertained despite the guilty plea....Whether a plea of guilty is effective and binding will be a question of fact to be determined by the appellate court ascertaining from the record and from other evidence tendered, what occurred at the time the plea was entered. The onus will be on the appellant to establish the facts on which the validity of the plea is challenged.’

6. On the facts in this case, court record shows that the charge was read and explained to the appellant. He understood the charge. His right to counsel was also explained to him by the learned Magistrate and he advised the court that he will defend himself. He then pleaded guilty and the appellant advised the court that he was not forced nor induced to plead guilty. When the facts were put the appellant he admitted it. After admitting the facts the appellant was then convicted as charged. The appellant then mitigated and in his mitigation he said nothing that would suggest that he did not fully understood the nature and likely effect of his plea. On those facts and in the absence any other evidence from which the Court may understand fully what occurred at the time the plea was entered, I find that the guilty plea entered by the appellant was in the circumstances of this case unequivocal and the conviction properly entered. A similar challenge against a guilty arose in Joji Waqasaqa & Sarwan Kumar v The State [2005] HAA 006 of 2004, where Mr Justice Winter after reviewing from the records what occurred at the time the plea was entered, and they were almost identical to those in this case, concluded that the guilty plea was unequivocal.

7. Counsel for the Appellant had filed his written submission before the Court Record was available. He conceded that since reading the record, his submission on the right to legal counsel may not be supportable on the facts. I agree. The same applied to the need to need for adjourned, that ground is misinformed given the facts in this case.

8. The appellant alleges that he was influence by a Police Officer to plead guilty, this claim is before the Court without supporting affidavit evidence of the appellant. The appellant will need to explain the inconsistency in his evidence at the trial, where he stated he was not induced by anyone. I am unable to accept this claim at this stage.

9. In the light of the above I find that there is not merit in the appeal against conviction. The conviction entered by the trial Magistrate against the appellant is upheld.

10. Against sentence, I find that 6 months imprisonment is principled and not excessive nor harsh. I agree with the position set out in the State v Maba Mokubula [2003] FJHC 164: HAA 053 of 2003. I would like to put it beyond doubt that any person charged and convicted of Act with Intent to cause Grievous Harm under section 224 of the Penal Code cap 17, must expect to receive custodial sentence following the decision of the Court of appeal in the State v Dinesh Chand Crim. App. Case No; AAU 027 of 2000.

11. Counsel for Appellant has submitted to this court references to 6 Magistrate Court sentencing decisions concerning conviction under
section 224 of the Penal code Cap 17, where the sentence has been, either suspended sentences or fine or both fine and good behaviour bond. All of these decisions post-dated the decision of the Court of Appeal in Dinesh Chand (supra) and the High Court in Maba Mokubula (supra). I would counsel those concerned to be guided by those decisions I have just referred to. It is undesirable to have different sentencing practice in Labasa, from the rest of Fiji on the same offence. Uniformity of approach must be the goal to achieved by the courts.

12. In the light of the above the sentence of 6 months imprisonment passed by the learned Magistrate is proper and I uphold it.

13. Are there any exceptional circumstances in the case, that would allow the court to suspend the sentence of imprisonment. The partner of the appellant gave evidence in the appeal hearing concerning the difficulty she is facing in looking after their children and trying to earn some money to provide some of the basic necessities of life. She is casually employed as a salesgirl. She has been in a partner of the appellant for 18 years and they have 3 children of the relationship. She has forgiven the appellant and is reconciled with him.

14. I consider that on the facts of this case a short sharp custodial sentence, will ensure that the appellant understood fully the folly of his behaviour. I am also constrained by the fact that section 29(3) of the Penal Code fetters the power of the court for crimes of violence in imposing suspended sentences.: DPP v Saviriano Radovu(1996) 42 FLR 76; State v Senitiki Naqa & Ors [2003] HAA 023 of 2003.

15. In the light of the above, the sentence of 6 months imprisonment passed by the learned Magistrate is upheld.

16. The court make the following orders:

i) that the appeal against conviction and sentence is dismissed as having no merit;

ii) the bail of the appellant pending the outcome of this appeal is now revoked;

iii) the appellant must now serve the balance of his term of imprisonment passed by the Magistrate Court.

Isikeli Mataitoga
JUDGE

At Labasa
29 February 2008.