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Donu v State [2014] FJCA 11; AAU0038.2011 (21 February 2014)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO: AAU0038 OF 2011
(Lautoka High Court Appeal No: HAA27/10L)

BETWEEN:

KAMINIELI DONU
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Appellant in person
Mr. M. Korovou for the Respondent

Date of Hearing : 18 February 2014
Date of Ruling : 21 February 2014

RULING

[1] This appeal against sentence arises from a judgment of the High Court in its appellate jurisdiction. The issue for this Court is to determine whether the appellant has a right of appeal under section 22 (1A) of the Court of Appeal Act.

[2] On 9 June 2010, the appellant was sentenced to a total term of 9 years and 6 months imprisonment in the Magistrates' Court after he pleaded guilty to the following offences:

(i) Robbery with violence, contrary to section 293(1)(b) of the Penal Code.
(ii) Burglary, contrary to section 299 of the Penal Code.
(iii) Larceny from a dwelling house, contrary to section 270 of the Penal Code.
(iv) Unlawful use of motor vehicle, contrary to section 192 of the Penal Code.

[3] The total term was arrived at by making the individual sentence for robbery and burglary consecutive.

[4] The appellant appealed against sentence to the High Court on the following grounds:

"The appellant submits that as the offences were committed in December 2008, the Magistrate was in error in imposing a non-parole period as prescribed by the Sentencing and Penalties Decree 2009 which came into effect on 1st February 2010.

Secondly, the appellant submits that no allowance was afforded him for time spent in remand and for his pleas of guilty.

He submits finally that the sentences should not have been made consecutive; that as they all arose out of the same incident, they should have been made concurrent."

[5] Madigan J heard the appeal and delivered his judgment on 11 March 2011. The appeal was partially allowed and the appellant was sentenced afresh as follows:

[6] The High Court agreed with the learned Magistrate that the robbery sentence should be made consecutive with the burglary sentence. The reasons were explained by Madigan J at paragraph [23] of the judgment.

"The sentences for burglary, larceny and misuse of a motor vehicle are to be all served concurrently; however I do find force in the Magistrate's argument that a deterrent sentence is necessary to endeavour to protect society from crimes of violence. For those reasons the sentence for the robbery will stand apart from the burglary offences (which were committed on another distinct occasion) which means the appellant's total sentence to be served will be one of eight years and eight months dating from the 9th June 2010."

[7] On 12 April 2011, the appellant filed a timely appeal against the High Court's judgment to this Court on the same grounds that were advanced in the High Court.

[8] At the hearing, the appellant applied for an adjournment to prepare his arguments but that application was refused because the appeal was filed three years ago and the appellant had ample opportunity to prepare his submissions.

[9] When the appellant was explained that he can only appeal against his sentence if it was an unlawful one or was passed in consequences of an error of law, he pressed on with the complaint that all his sentences should have been made consecutive because they arose from the same transaction. This ground clearly requires consideration of the facts on which the robbery and the burglary charges were based. Madigan J dealt with those facts and concluded that the robbery and the burglary were two separate offences justifying two different punishments.

[10] The appellant has failed to satisfy that the sentence imposed on him by the High Court is either unlawful or was passed in consequences of an error of law.

[11] The appellant has no right of appeal and his appeal against sentence is bound to fail.

[12] The appeal is dismissed under section 35(2) of the Court of Appeal Act.

....................................
Hon. Justice D. Goundar
JUSTICE OF APPEAL