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Diani v State [2014] FJCA 152; AAU0127.2013 (19 September 2014)

IN THE COURT OF APPEAL
[On Appeal from the High Court]

Criminal Appeal No. AAU0127 of 2013
[High Court Case No. HAC 426 of 2012S]

BETWEEN:

RUPENI DIANI
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Ms N. Nawasaitoga for the Appellant
Ms P. Madanavosa for the Respondent

Date of Hearing : 12 August 2014
Date of Ruling : 19 September 2014

RULING

[1] On 22 November 2013, the appellant was sentenced to a total term of 2 years' imprisonment after he pleaded guilty to one count each of aggravated burglary and theft in the High Court at Suva. On 9 December 2013, he filed a timely notice to seek leave to appeal against his sentence. His only contention is that the learned High Court judge erred in law and in fact when he failed to take into account his remand period in sentence. No other errors are being alleged in the sentencing discretion of the lower court.

[2] Counsel for the appellant submits that allowance for remand period in sentence is expressly provided by section 24 of the Sentencing and Penalties Decree of 2009. Section 24 states:

If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court otherwise orders, be regarded by the Court as a period of imprisonment already served by the offender.

[3] The issue of the remand period was raised in the sentencing hearing in the High Court. The learned High Court judge dealt with the issue at paragraph [17] of his sentencing remarks:

"The prosecution and the defense counsels (sic) filed their sentencing submissions. Both counsels (sic) failed to mention why accused spent two years in the prison. Upon inquiry the Officer In charge of Suva Remand Prison informed this court that the accused was convicted by Magistrate's Court for Aggravated Robbery and he had just completed his sentence."

[4] It is clear from the learned judge's remarks that the appellant was not in custody on remand, but was a serving prisoner awaiting trial when he was sentenced in this case. An offender is not entitled for an allowance in sentence under section 24 of the Sentencing and Penalties Decree if he was a serving prisoner and not in custody on remand awaiting trial.

[5] I find the ground of appeal is not arguable. Section 35(2) of the Court of Appeal Act provides a single judge with power to dismiss an appeal that is frivolous. A frivolous appeal is one that cannot possibly succeed (Simeli Naisua v The State unreported Criminal Appeal No. CAV0010 of 2013 (20 November 2013). I am satisfied that this appeal cannot possibly succeed, and therefore, is frivolous.

Result
[6] Leave to appeal is refused.

Appeal is dismissed under section 35(2) of the Court of Appeal Act.

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

At Suva
19 September 2014

Solicitors:

Office of the Legal Aid Commission for Appellant

Office of the Director of Public Prosecutions for State