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Turagarua v State [1999] FJCA 72; AAU0037D.98 (11 August 1999)

IN THE COURT OF APPEAL, FIJI AT SUVA

CRIMINAL APPEAL NO. AAU0037 OF 1998
(High Court Criminal Appeal Nos. HAA0081, 82
83, 84, 85 and 86/98)

BETWEEN:

MELI TURAGARUA
Appellant

AND:

THE STATE
Respondent

Order of dismissal of appeal under Section 35 of the
Court of Appeal Act

On 31/12/96 the Appellant was sentenced by the Magistrates' Court, Nadi as follows on his own pleas of guilty:-

1. 1339/96 - Robbery with violence
4 years imprisonment

2. 1340/96 - Sacrilege
4 years imprisonment
Consecutive to 1339/96

3. 1341/96 - Burglary
3 years imprisonment
Consecutive to 1339/96 and 1940/96

4. 1342/96 - Burglary
3 years imprisonment
Consecutive to 1339/96, 1940/96 and 1341/96

5. 1343/96 - House Breaking, Entering & Larceny
2½ years imprisonment
Concurrent with 1342/96

6. 1344/96 - House Breaking, Entering & Larceny
2½ years imprisonment
Concurrent with 1342/96 and 1343/96

He appealed against the sentences to the High Court at Lautoka which on 3 July 1998 reduced the total sentence from 14 years to 8 years. He now wishes to make a second appeal to this Court against not only severity of sentence but also against conviction. To that end he seeks leave to appeal out of time.

Under Section 22(1)(a) of the Court of Appeal Act (as amended by Act No. 38 of 1998) the Appellant can only appeal on a question of law. No question of law has been identified as regards conviction.

As regards an appeal against sentence Section 22(1A)(a) and (b) qualify it as follows:-

“(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 sentence imposed on the Appellant was neither an unlawful one nor passed in error of law. Nor did the High Court impose an immediate custodial sentence in substitution for a non-custodial sentence. Clearly the Appellant has no right of appeal either against conviction or sentence. In the circumstances there is no point in granting leave to appeal out of time.

The Appellant's application is therefore refused and his proposed appeal wholly dismissed under Section 35 of the Court of Appeal Act (as amended by Act No. 38 of 1998).

Dated at Suva this 11th day of August 1999.

Sir Moti Tikaram
President, Court of Appeal, Fiji