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Sharma v State [2015] FJCA 174; AAU0012.2015 (23 December 2015)

IN THE COURT OF APPEAL
[On Appeal from the Extended Jurisdiction of the Magistrates' Court]

CRIMINAL APPEAL NO: AAU0012 OF 2015
(High Court Case No: HAC 142/2012)
(CF 221 of 2012)

BETWEEN:

PRANIL SHARMA
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA

Counsel : Appellant in person
Mr. L. J. Burney for the State

Date of Hearing : 14 December 2015
Date of Ruling : 23 December 2015

RULING

[1] The appellant appeared before Nadi Magistrates' Court exercising an extended jurisdiction and pleaded guilty to two counts of aggravated robbery contrary to section 311(1)(b) of the Crimes Decree No. 44 of 2009. On 19 September 2014, he was sentenced to a total term of 3 years and 11 months' imprisonment with a non-parole period of 3 years. This is an application for leave to appeal pursuant to section 21(1) of the Court of Appeal Act, Cap. 12. The initial Notice was against sentence only but at the hearing, the appellant gave an impression that he was challenging his conviction. Since the appellant is unrepresented, I explained to him the contradiction arising from his challenge to his conviction based on guilty plea and discount given in sentence for remorse arising from his guilty plea. When this was explained, the appellant confined his submissions to sentence.

[2] The initial Notice of Appeal was filed in the High Court. That Notice was within time. However, the High Court dismissed the appeal for want of jurisdiction. The current appeal was filed 4 months and 9 days out of time. The appellant offered written explanation for the delay. He stated that the learned Magistrate in his sentencing remarks indicated an appeal period of 28 days. Since the statutory appeal period from the Magistrates' Court to the High Court is 28 days, the appellant assumed his right of appeal lied with the High Court.

[3] It is now accepted that appeals from the Magistrates' Court exercising an extended jurisdiction lie with the Court of Appeal pursuant to section 21 of the Court of Appeal Act, Cap, 12. I accept the appellant's explanation for the delay. I find he is not at fault. As soon as he discovered that his right of appeal lied with the Court of Appeal, he filed his Notice at the Court of Appeal Registry. In addition, the State takes no issue with the delay. In these circumstances, I grant an extension of time.

[4] The test for leave to appeal against sentence is whether there is an arguable error in the sentencing discretion (Sharma v State unreported Cr. App. No. AAU0065 of 2012; 2 June 2014).

[5] The grounds of appeal in summary are:

1. Disparity in sentence.
2. Wrong guideline judgment and tariff used.
3. Wrong starting point used.
4. Sentence and non-parole period is manifestly excessive.
   

[6] The brief facts of the case were that the appellant accompanied the two victims to Traveler's Apartment in Martintar on the evening of 8 February 2012 and checked into a room. At around 3am, the appellant's co-offender entered the room and threatened the victims with an iron rod while the appellant threatened the victims with death if they raised alarm. They fled the scene after gagging the victims and robbing them of their belongings.

[7] The appellant's co-offender was never arrested or charged. According to the appellant, his co-offender had fled the jurisdiction. Since the co-offender was not charged, convicted and punished, the disparity principle had no application to the appellant's sentence.

[8] The maximum penalty prescribed for aggravated robbery is 20 years imprisonment. When the appellant committed the robbery in 2012, the applicable tariff for the offence was between 8-14 years' imprisonment (Bonaseva v State [2015] FJSC 12). The learned Magistrate used the lower end of the tariff (8 years) and then adjusted the sentence to reflect the mitigating and aggravating factors. The learned Magistrate gave generous discount for the appellant's guilty plea and previous good character.

[9] The decision to fix a non-parole period does not involve an exercise of discretion under section 18(1) of the Sentencing and Penalties Decree 2009. The non-parole term of 3 years is at least 6 months less than the head sentence and complies with section 18(4) of the Sentencing and Penalties Decree 2009.

[10] For these reasons, I am satisfied that there is no arguable error in the sentencing discretion. Leave must be refused. I now turn my mind to whether this appeal is frivolous under section 35(2) of the Court of Appeal Act, Cap. 12. A frivolous appeal is one that cannot possibly succeed. The sentence imposed on the appellant is clearly well below the tariff of 8-14 years' imprisonment for aggravated robbery. Counsel for the State submits that the sentence is no doubt lenient but not manifestly lenient. The sentence imposed on the appellant was justified with reasons. In these circumstances I can say with confidence that the Full Court would not impose a different sentence. I feel satisfied that this appeal cannot possibly succeed.

Result
Leave refused.
Appeal dismissed under section 35(2) of the Court of Appeal Act. Cap. 12.

Hon. Justice Daniel Goundar
Justice of Appeal

Solicitors:
Appellant in person
Office of the Director of Public Prosecutions for the State