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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CRIMINAL APPEAL NO.AAU 122 of 2017
[In the High Court at Suva Case No. HAC 013 of 2017]
BETWEEN:
WAISEA MOTONIVALU
Appellant
AND:
STATE
Respondent
Coram: Prematilaka, JA
Counsel: Appellant in person
Mr. Y. Prasad for the Respondent
Date of Hearing: 04 March 2021
Date of Ruling : 05 March 2021
RULING
[1] According to the sentencing order, the appellant had been indicted in the High Court of Suva on a single count of aggravated robbery contrary to section 311(1) (a) of the Crimes Act, 2009 committed on 01 January 2017 at Lokia, Rewa, in Central Division.
[2] The particulars of the offence read as follows.
“Waisea Motonivalu and others on the 1st day of January 2017, at Lokia, Rewa, in Central Division, in the company of each other robbed Jai Prasad of a 15 Horsepower Yamaha Outboard Engine valued at $5,950.”
[3] The appellant had pleaded guilty on 24 March 2017 on his own free will and the trial judge having been satisfied that the appellant had fully comprehended the legal effects of his plea and that it was voluntary and free from any influence, had convicted him. He had been sentenced on 21 May 2019 to 09 years and 07 months of imprisonment with a non-parole period of 08 years and 07 months.
[4] The appellant being dissatisfied with the conviction and sentence had submitted an untimely notice of appeal and application for leave to appeal on 18 August 2017. The delay is about 02 months. He had tendered an application to abandon the conviction appeal on 03 April 2019. The Legal Aid Commission (LAC) had filed an amended notice of appeal canvassing only the sentence and written submissions on 19 June 2020. It had also tendered a notice of motion seeking bail pending appeal and written submissions on 03 August 2020. However, perhaps upon realizing that the appellant had pleaded guilty to the charge of murder in the same case earlier and the court had convicted and sentenced him to life imprisonment with a minimum serving period of 20 years, the LAC withdrew from the case and the appellant is pursuing the matter in person. The state had filed its submissions on 23 October 2020.
[5] In Nawalu v State [2013] FJSC 11; CAV0012.12 (28 August 2013) the Supreme Court said that for an incarcerated unrepresented appellant up to 03 months might persuade
a court to consider granting leave if other factors are in his or her favour and observed.
‘In Julien Miller v The State&A160;AAU0076/07 (23rd October 2007) Byrne J considered 3 months in a criminal matter a delay
period which could be considered reble to justify the court granting leave.’
[6] The state had not raised any objectijection to the appeal on the basis of delay and given that the delay is about 02 months and
the appellant had appealed in person, I am inclined to consider his appeal as a timely appeal.
[7] In terms of section 21(1)(c) of the Court of Appeal Act, the appellant could appeal against sentence only with leave of court. The test for leave to appeal is ‘reasonable prospect of success’ (see Caucau v State AAU0029 of 2016: 4 October 2018 [2018] FJCA 171, Navuki v State AAU0038 of 2016: 4 October 2018 [2018] FJCA 172 and State v Vakarau AAU0052 of 2017:4 October 2018 [2018] FJCA 173, Sadrugu v The State Criminal Appeal No. AAU 0057 of 2015: 06 June 2019 [2019] FJCA87 and Waqasaqa v State [2019] FJCA 144; AAU83.2015 (12 July 2019) in order to distinguish arguable grounds [see Chand v State [2008] FJCA 53; AAU0035 of 2007 (19 September 2008), Chaudry v State [2014] FJCA 106; AAU10 of 2014 and Naisua v State [2013] FJCA 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds.
[8] Further guidelines to be followed for leave to appeal when a sentence is challenged in appeal are well settled (vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013] FJSC 14; House v The King [1936] HCA 40; (1936) 55 CLR 499,
(ii> (i) Acted upon a wrong principle;
(ii) Allowed extraneous or irrelevant matters to guide or affect him;
(iii) Mistook the facts;
(iv) Failed to take into account some relevant consideration.
[9] The only gnly ground of appeal against sentence is as follows.
Ground 1:
That the sentence imposed on your appellant is harsh and excessive in light of the non-parole term being set too close to the head sentence.
[10] The sentencing order reveals the following facts.
3. It was revealed in the summary of facts, which you admitted in open court that you were drinking home-brew with other accomplices on the 31st December 2016 at Turaki Settlement in Lokia. At about midnight, when the home brew finished, you and your accomplices planned to steel the outboard engine owned by the victim and sell it in order to buy more alcohol, so that you can continue the drinking party.
01st ground of appeal
[11] The appellant argues that he being a first offender should have been given a lesser non-parole period by the trial judge. In other words his contention is that the non-parole period is too close to the head sentence.
[12] Section 18(4) of the Sentencing and Penalties Act states that any non-parole period so fixed must be at least 06 months less than the term of the sentence. In Korodrau v State [2019] FJCA 193; AAU090.2014 (3 October 2019) the Court of Appeal stated
‘[114] The Court of Appeal guidelines in To> and&# Raogo Bogidr> by the the Supreme Court required the trial Judge to be mindful that (i) the non-parole term should n so cto thd sentence as to deny or discourage the poss possibiliibility of rehabilitation (ii) Nor should ould the gap between the non-parole term and the head sentence be such as to be ineffective as a deterrent (iii) the sentencing Court minded to fix a minimum term of imprisonment should not fix it at or less than two thirds of the primary sentence of the Court.’
[13] The Supreme Court in Tora v State<160;;CAV11 of 2015: 22 October 2015 [2015] FJSC 23 had q from RaogoRaogoe StateCAV 003 of 2010: 19 August 2010 on then the legislative intention behind a court having to fix a non-parole peri foll/p>
"The mischief that the legislaturlature perceived was that in serious casescases and in cases involving serial and repeat offenders the use of the remission power resulted in these offenders leaving prison at too early a date to the detriment of the public who too soon would be the victims of new offences."
[14] In Nav State AAU102 of 23 DecemDecember 2015 br>
“While leaving the discretion to decide on the non-parole period when sentencing to the sentencing Judge it would be necessary to state
that
‘.... was intended to be the minimum period which the offender would have to serve, so that the offender would not be released earlier than the court thought appropriate, whether on parole or by the operation of any practice relating to remission’.
[15] Thus, the non-parole period of 08 years and 07 months (when the head sentence was 09 years and 07 months) fixed by the trial judge is in compliance with section 18(4). He had considered many mitigating factors including the appellant being a first offender in the sentence order. Therefore, the gap of 01 year between the final sentence and the non-parole period cannot be said to have violated any statutory provisions and it is not obnoxious to the judicial pronouncements on the need to impose a non-parole period. The 01 year gap between the head sentence and the non-parole period is reinforced by the disturbing circumstances which I shall advert to later in the ruling.
[16] Before that, it is pertinent to note that in terms of the new sentencing regime introduced by the Corrections Service
[17] Therefore, there is no sentencing error or any prospect of success in appeal of the ground of appeal against sentence.
[18] The state has submitted that the appellant had been charged for murder in the same case HAC 013 of 2017. The deceased had been the inmate of the house whom the appellant caught while escaping and dragged to the bushes while the others robbed the deceased’s house. Subsequently, the deceased had been stomped to death.
[19] The appellant had pleaded guilty for the murder of the said inmate of the house on 01 November 2016 and been sentenced to death with a minimum serving period of 20 years. He had not divulged at all his guilty plea for murder and the life imprisonment which he is currently serving in his affidavit filed in support of his bail pending application. He appears to have suppressed it from his previous lawyers namely the Legal Aid Commission and clearly attempted to suppress it from this court.
[20] In the circumstances, his current appeal against sentence imposed for aggravated robbery and bail pending appeal application is not only devoid of any merits but also frivolous and vexatious.
[21] Therefore, the appellant’s appeal against sentence should stand dismissed in terms of section 35(2) of the Court of Appeal Act.
Orders
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
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