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Khan v State [2009] FJCA 17; AAU0046.2008 (13 October 2009)

IN THE COURT OF APPEAL, FIJI ISLANDS
AT SUVA
APPELLATE JURISDICTION


CRIMINAL APPEAL NO: AAU 0046/2008
(High Court Criminal Action No: HAM 38/06L)


BETWEEN:


IMTIAZ KHAN
Appellant


AND:


THE STATE
Respondent


Coram: The Hon. Mr. Justice Devendra Pathik
Judge of Appeal


Counsel: Appellant in Person
Ms N Tikoisuva for the Respondent


Hearing: 13 October 2009
Date of Ruling: 13 October 2009


RULING
[Leave to Appeal Out of Time]


Background Facts


[1] This is the appellant Imtiaz Khan’s application for leave to appeal out of time against sentence imposed on him on 18 July 2006.


[2] The appellant and another were convicted on 10 March 2006 in the Lautoka Magistrate’s Court on their own plea for the offence of Robbery with Violence and Unlawful use of motor vehicle.


[3] They were sentenced to 7 years and 6 months imprisonment to be served concurrently.


[4] On appeal to High Court at Lautoka the sentence of 7 years for robbery with Violence was reduced to 6 years but the sentence of 6 years in Count 2 for unlawful use of motor vehicle was to remain. The sentence to be served concurrently.


[5] The application came before for hearing on 13 October 2009.


[6] The appellant told the court that he has already served 3 years of his 6 years sentence of imprisonment. He said that he admits that he is out of time.


[7] The reason, he says, why he failed to filed his appeal out of time is because he is uneducated, he does not know the law. He says that the sentence is harsh. To prepare his grounds he was helped by an inmate in prison to write his grounds. He says that he has appealed because he was ‘told’. The appellant says that others got lesser sentence for robbery with violence. He told this court when asked that he has read what the High Court has said about the seriousness of the case in his Judgment.


[8] The Respondent opposes the application stating that this is a second appeal and section 22 (1A) is applicable.


[9] Counsel submits that the sentence imposed is a little below tariff. The circumstances under which the offence was committed warranted a higher sentence. Further, the appellant is three years out of time in applying for leave; the application is also frivolous and vexatious.


The Law -Second Appeal – s22 [1A] of Court of Appeal Act


[10] Evidently the application is made under s22(1A) of the Court of Appeal Act which provides as follows:


"22(1A) No appeal under subsection (1) lies in respect of a sentence imposed by the High Court in its appellate jurisdiction unless the appeal 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. [Added by 38 of 1998]


[11] This is the appellant’s second appeal and is an appeal from the Judgment of Kishore Govind J of 18 July 2006 when the sentence was reduced from 7 years to 6 years.


[12] The circumstances surrounding the offences were so serious that a higher sentence was warranted in my view. In fact I have good mind of increasing the sentence but will not do so in this case in the hope that other like minded people like the appellant will think twice before offending and take note of my comment herein.


[13] What more could be more serious than the facts below that, as the learned Judge said in his Judgment:


"They had followed the victims from Saweni Beach to Lomolomo Beach, where by frightening the complainants with broken beer bottles and a knife, the two appellants with three others succeeded in stealing a number of items of which all except items to the value of $637 were recovered."


[14] Like the learned Judge I agree with what he had to say when he said:


"I do not accept that he acted under peer-pressure. He has 14 pervious convictions for Burglary, Larceny and related offences, so he was no greenhorn capable of being led by others. He was the driver but before driving away the complainant’s vehicle he had fully participated in the robbery.


Appeal Out of time


[15] The appellant has not given any good reason for appealing three years out of time.


[16] There are Rules governing time to appeal. The appellant thinks that he can appeal anything he likes. He has been ill-advised by inmate in the prison. The court cannot entertain this kind of application.


[17] The application deserves to be summarily dismissed.


[18] (a) The grounds advanced by the appellant are completely without merit. In fact I find that this is a frivolous and vexatious application. Further the application is an abuse of the process of the court.


(b) To apply three years out of time is unthinkable and particularly for the offences for which he is convicted and sentenced. It is a case which I should have summarily dismissed. In future perhaps the court would in an appropriate case give serious consideration to enhancing sentence.


[19] The requirements of section 22(1A) have not been satisfied as the sentence was neither unlawful nor was it passed in consequence of an error of law.


[20] For the above reasons the application for leave to appeal out of time against sentence is dismissed.


Dated at Suva this 13th day of October 2009


D. Pathik
Judge of Appeal


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