| Fiji Islands - Naloto v The State - Pacific Law Materials |
IN THE COURT OF APPEAL, FIJI
AT SUVA
CRIMINAL APPEAL NO. AAU0027 OF 1998
(High Court Criminal Appeal No. HAA0005/06/07/ 08/09/10/11/12/13/14/15/16/17/18/19/20/21/22&23 OF 1998L)
BN:
:
ULAIASI NALOTO
Appellant
AND:
THE STATE
Respondent
Dismissalissal of appeal against severity of sentence by a single
judge under Section 35(2) of the Court of Appct
(as amended by Act No. 13 of 1998)
On 24th June, 1997 the Appellant was sentenced by the Nadi Magistrates' Court to a total of 13½ years imprisonment. The Appellant
had pleaded guilty to 17 charges of cattle stealing, 1 charge of possession of Indian hemp and 1 charge of causing grievous harm.
He appealed to the High Court Lautoka against the severity of sentence. On 22nd May, 1998 Lyons J. allowed the appeal and reduced
the total sentence to 9½ years because he was of the opinion that a 13½-year sentence offended against the principle of totality.
On 19th October, 1998 the Appellant signed a 'Petition of Appeal' against severity of sentence. This 'Petition' together with his
letter outlining the grounds of his appeal was received by the Court of Appeal on 23rd October, 1998. He says the sentence of 9½
years is harsh and excessive.
The proposed appeal is bound to fail for the following two reasons:-
(i) that the proposed appeal is well out of time; it should have been filed on or before 21 May 1998 (see S.22(8) and S.26 of the
Court of Appeal Act);
(ii) that in any case the Appellant has no right of appeal.
The Appellant is seeking to have his sentence reduced on the ground of mercy. A second appeal is governed by Section 22 of the Court of Appeal Act as amended by the Court of Appeal (Amendment) (No. 2) Act 1998. It reads as follows:-
" 22.-(1) Any party to an appeal from a magistrate’s court to the High Court may appeal, under this Part, against the decision
of the High Court in such appellate jurisdiction to the Court of Appeal on any ground of appeal which involves a question of law
only:
Provided that no appeal shall lie against the confirmation by the High Court of a verdict of acquittal by a magistrate’s court.
(1A) No appeal under subsection (1) lies in respect of a sentence imposed by the High Court in its appellate jurisdiction unless the
appeal is on the ground-
(a) that the sentence was an unlawful one or was passed in consequence of an error of law; or
(b) that the High Court imposed an immediate custodial sentence in substitution for a non- custodial sentence."
The maximum sentence which may be imposed for cattle theft is imprisonment for 14 years, well in excess of the maximum sentence of
imprisonment for five years which a resident magistrate may impose. The maximum sentence for unlawfully wounding with intent to do
grievous harm is imprisonment for life. Although the offences were the subject of separate charges in the Magistrates' Court, they
were dealt with together and sentence was passed on the Appellant in respect of all of them at the same time. Section 12 of the Criminal Procedure Code (Cap. 21) was, therefore, applicable and the maximum aggregate of the sentences which the resident magistrate could lawfully impose
was double the maximum sentence which he could impose for any single offence. The aggregate imposed by Lyons J. was within that maximum.
The sentence passed on the Appellant by the High Court was, therefore, not unlawful, nor was it passed in error of law.
The proposed appeal is therefore bound to fail as there is no right of appeal and effectively no right to seek leave to appeal out
of time.
Consequently the appeal is dismissed.
Dated at Suva this 4th day of February 1999.
Sir Moti Tikaram
President, Court of Appeal, Fiji
Aau0027d.98
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