IN THE COURT OF APPEAL, FIJI
[On Appeal from the Magistrates Court]

CRIMINAL APPEAL NO. AAU 006 of 2022
[Magistrates Court of Nasinu Case No. 297 of 2014]

                                                               BETWEEN: 	
ETIKA MADRAI NASEVULA
                                                             Appellant

 AND:	
STATE
 Respondent

Coram: Prematilaka, JA

Counsel: Mr. M. Fesaitu for the Appellant
 : Mr. R. Kumar for the Respondent

 Date of Hearing: 04 March 2022

 Date of Ruling: 04 March 2022

RULING 

[1]	The appellant had been arraigned with another in the Magistrates’ court at Nasinu under extended jurisdiction on a single count of aggravated robbery contrary to section 311(1) (a) of the Crimes Act, 2009 committed on 09 November 2014 at Nasinu in the Central Division. The charge of aggravated robbery against the appellant read as follows:

	‘Statement of Offence (a)

AGGRAVATED ROBBERY: Contrary to section 311(1) (a) of the Crimes Decree No.44 of 2009.

              Particulars of the Office (b)
 
ETIKA MADRAI NASEVULA and EPELI SOQONAKAVIKA on the 9th day of November 2014 at Nasinu in the Central Division, dishonestly appropriated (stole) 1 x black handbag valued at $157.00, 1 x Samsung mobile phone valued at $899.00, 1 x white Nokia mobile phone valued at $40.00 and $40.00 cash all to the value of $1,136.00 the property of SONIL KAMAL and before such robbery used force of the said SONIA KAMAL.’

[2]	The appellant had pleaded guilty voluntarily to the charge and admitted the summary of facts.  The learned Magistrate had convicted him accordingly and sentenced on 02 February 2016 to an imprisonment of 08 years with a non-parole period of 05 years.

[3] 	The appellant in person had signed an untimely notice of appeal against conviction and sentence on 16 April 2019. The CA registry has however registered it as a 2022 appeal. The appellant has filed a Form 3 (Rule 39) expressing his willingness to abandon his conviction appeal. The Legal Aid Commission had subsequently filed an amended ground of appeal and written submissions only against sentence along with an application for extension of time to appeal against sentence. The State had also tendered its written submissions.

[4]	Presently, guidance for the determination of an application for extension of time within which an application for leave to appeal may be filed is given in the decisions in Rasaku v State CAV0009, 0013 of 2009: 24 April 2013 [2013] FJSC 4 and  Kumar v State; Sinu v State CAV0001 of 2009: 21 August 2012 [2012] FJSC 17. Thus, the factors to be considered in the matter of enlargement of time are (i) the reason for the failure to file within time (ii) the length of the delay 
(iii) whether there is a ground of merit justifying the appellate court's consideration 
(iv) where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed? (v) if time is enlarged, will the respondent be unfairly prejudiced? 

[5]	Generally, where the delay is minimal or there is a compelling explanation for a delay, it may be appropriate to subject the prospects in the appeal to rather less scrutiny than would be appropriate in cases of inordinate delay or delay that has not been entirely satisfactorily explained [vide Lim Hong Kheng v Public Prosecutor [2006] SGHC 100)].

[6]	The delay of the appeal (over 03 years) is very substantial. The appellant had stated in his affidavit that he was arrested for an unrelated matter resulting in him getting absent from proceedings in this case. He had been sentenced in absentia and later arrested on a bench warrant around 25 July 2018 whilst working at a FNU site at Tamavua. According to him, he had been told by the police prosecution office at Nasinu that he would be informed of the status of this case, upon inquiries made after he was enlarged on bail by court in the unrelated matter. However, no such contact was ever made until his arrest. However, there is no explanation at all for the delay since July 2018 (which is also substantial). Nevertheless, I would now see whether there is a real prospect of success for the belated grounds of appeal against conviction and sentence in terms of merits [vide Nasila v State [2019] FJCA 84; AAU0004.2011 (6 June 2019]. The respondent has not averred any prejudice that would be caused by an enlargement of time.

[7]	When a sentence is challenged in appeal the appellate court would examine whether the trial judge (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 (vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013] FJSC 14; House v The King [1936] HCA 40;  (1936) 55 CLR 499, Kim Nam Bae v The State Criminal Appeal No.AAU0015 and Chirk King Yam v The State Criminal Appeal No.AAU0095 of 2011). The test for leave to appeal is not whether the sentence is wrong in law but whether the grounds of appeal against sentence are arguable points under the four principles of Kim Nam Bae's case. For a ground of appeal untimely preferred against sentence to be considered arguable there must be a real prospect of its success in appeal. 

[8]	The brief summary of evidence as narrated in the sentencing order is as follows:

‘The two accused pleaded guilty and the Court found that they gave their plea willingly without any cohesion or threat made against them.

The Court heard that on the 9th of November 2014 at about 5.47am the complainant was walking along Sakoca Road she was followed by the two accused.  She stood still to let them pass but all of a sudden the first accused held her neck while the second accused grabbed her bag and thereafter they fled the scene.  The accused robbed the complainant of:

1.	A Bag valued at $257.00;
2.	1 black Samsung mobile phone valued at $899.00;
3.	1 white Nokia mobile phone valued at $40.00;
4.	$40.00 cash;
5.	To the total value of $1,136.00.’

[9]	The sole ground of appeal urged is as follows:
 
	‘The final sentence imposed on the appellant is manifestly excessive as a result of  the sentencing learned Magistrate having acted on a wrong principle by adopting a sentencing tariff that is not applicable to the facts of the case to commence the sentencing process.’ 
			
[10]	The appellant argues that the offence of which he was convicted on the plea of guilty was that of ‘street mugging’ and it was wrong for the learned Magistrate to have applied the tariff of 08-14 years of imprisonment following cases decided under the Penal Code for robbery with violence. A similar complaint was discussed in detail by the full court in Singh v The State AAU 0049 of 2017 (03 March 2022). It appears that ‘street mugging’ cases had been treated leniently from serious types of aggravated robberies such as ‘home invasions’ both under the Penal Code and the Crimes Act, 2009. The Supreme Court is supposed to consider sentencing guidelines for this type of aggravated robberies at the request of the DPP in an appeal coming up in the April 2022 session. 

[11]	Until the Supreme Court comes up with new guidelines on ‘street mugging’ cases the Court of Appeal in Singh v The State (supra) decided to adopt the hitherto followed sentencing tariff of 18 months to 05 years for ‘street mugging’ as adverted to in  Raqauqau v State [2008] FJCA 34; AAU0100.2007 (4 August 2008) and subsequently followed in Tawake v State [2019] FJCA 182; AAU0013 of 2017 (03 October 2019) and Qalivere v State [2020] FJCA 1; AAU71.2017 (27 February 2020) where it was held that when the Magistrate selects the wrong sentencing range, that error is bound to get into every other aspect of the sentencing, including the selection of the starting point; consideration of the aggravating and mitigating factors and so forth, resulting in an eventual unlawful sentence.

[12]	The summary of facts in the case now before this court reveals a case of aggravated robbery in the form of street mugging. Therefore, there is a sentencing error on the part of the Magistrate in adopting the sentencing tariff of 08-14 years. After making adjustments upward for aggravating features and downward for mitigating factors, he had fixed the final sentence at 08 years (mathematically it should have been 07 years) which to me appears harsh and excessive given the nature and gravity of the offending. Therefore, the appellant’s sentence appeal has a real prospect of success and also a very high likelihood of success before the full court. 

 [13]	Thus, it appears that had the Magistrate picked the sentencing tariff of 08-14 years, after making upward and downward adjustments for aggravating and mitigating factors, the final sentence would not have reached 08 years. 

[14]	The appellant’s counsel has argued that since the Magistrate had not directed that the sentence imposed on the appellant should take effect from the date of the his arrest, it should be deemed to have run since the date of sentencing i.e. 02 February 2016. If not, it had to run from his arrest around 25 July 2018. However, I am not convinced of the correctness of this argument. In my, view whether a sentencing Judge or the Magistrate specifically directs or not, the sentence will start running from the date of the arrest of an absconding accused, for otherwise an absconding accused can spend his entire sentence in hiding. 

[15]	In the former case, the appellant is said to have served more than 06 years of imprisonment while in the latter case he has already served 03 years and 07 months.  In my view, the full court is not likely to impose a sentence towards the high end of the tariff of 18 months to 05 years given all the circumstances of the case. However, it is for the full court following the guidance provided by the Supreme Court in Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006) and Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015) to impose an appropriate sentence on the appellant in appeal. 

	Law on bail pending appeal

[16]	The legal position is that the appellant have the burden of satisfying the appellate court firstly of the existence of matters set out under section 17(3) of the Bail Act namely (a) the likelihood of success in the appeal (b) the likely time before the appeal hearing and (c) the proportion of the original sentence which will have been served by the appellant when the appeal is heard. However, section 17(3) does not preclude the court from taking into account any other matter which it considers to be relevant to the application. Thereafter and in addition the appellant have to demonstrate the existence of exceptional circumstances which is also relevant when considering each of the matters listed in section 17 (3). Exceptional circumstances may include a very high likelihood of success in appeal. However, appellant can even rely only on ‘exceptional circumstances’ including extremely adverse personal circumstances when he fails to satisfy court of the presence of matters under section 17(3) of the Bail Act [vide  Balaggan v The State  AAU 48 of 2012 (3 December 2012) [2012] FJCA 100, Zhong v  The State AAU 44 of 2013 (15 July 2014), Tiritiri v State [2015] FJCA 95; AAU09.2011 (17 July 2015),  Ratu Jope Seniloli & Ors. v The State AAU 41 of 2004 (23 August 2004), Ranigal v State [2019] FJCA 81; AAU0093.2018 (31 May 2019), Kumar v State [2013] FJCA 59; AAU16.2013 (17 June 2013), Qurai v State [2012] FJCA 61; AAU36.2007 (1 October 2012), Simon John Macartney v. The State Cr. App. No. AAU0103 of 2008, Talala v State [2017] FJCA 88; ABU155.2016 (4 July 2017), Seniloli and Others v The State AAU 41 of 2004 (23 August 2004)].

[17]	Out of the three factors listed under section 17(3) of the Bail Act ‘likelihood of success’ would be considered first and if the appeal has a ‘very high likelihood of success’, then the other two matters in section 17(3) need to be considered, for otherwise they have no direct relevance, practical purpose or result.   
[18]	If the appellant cannot reach the higher standard of ‘very high likelihood of success’ for bail pending appeal, the court need not go onto consider the other two factors under section 17(3). However, the court may still see whether the appellant have shown other exceptional circumstances to warrant bail pending appeal independent of the requirement of ‘very high likelihood of success’.  
[19]	The appellant has already satisfied this court that he deserves to be granted enlargement of time to appeal against sentence and also that he has a very high likelihood of success in his appeal against sentence as discussed above.

[20]	I shall now consider the second and third limbs of section 17(3) of the Bail Act namely ‘(b) the likely time before the appeal hearing and (c) the proportion of the original sentence which will have been served by the appellant when the appeal is heard’ together.

[21]	The appellant has already served about 03 years and 07 months in imprisonment. Obtaining certified appeal records will take a considerable time. Thus, the appeal is not likely to be taken up before the full court in the immediate future (given the number of older appeals already in the state of readiness awaiting full court hearing). 

[22]	If the appellant is not enlarged on bail pending appeal at this stage, he is likely to serve perhaps more than the whole of the sentence the full court is likely to impose on him after hearing the appeal in the future. Therefore, it appears that section 17(3) (b) and (c) should be considered in favour of the appellant in this case.  

[23]	Therefore, I am inclined to allow the appellants’ application for bail pending appeal and release him on bail on the conditions given in the Orders. 

Orders 

1.	Enlargement of time to appeal against sentence is allowed. 
2.	Bail pending appeal is granted to the appellant subject to the following conditions:

(i)	The appellant shall reside with his mother and step father at their family residence at Lakha Singh Road, Sakoca Settlement, Tacirua, Nasinu.
(ii)	The appellant shall report to Valelevu Police Station every Saturday between 6.00 a.m. and 6.00 p.m.
(iii)	The appellant shall attend the Court of Appeal when noticed on a date and time assigned by the registry of the Court of Appeal. 
(iv)	The appellant shall provide in the persons of Raika Tinanivalu who is the mother of the appellant and Sowani Raboti who is his step father, both of Lakha Singh Road, Sakoca Settlement, Tacirua, Nasinu to stand as sureties.
(v)	Both sureties shall provide sufficient and acceptable documentary proof of their identities such as Voter Identification Cards to the CA Registry.
(vii)	The appellant shall be released on bail pending appeal upon conditions (iv) and (v) above being fulfilled.
(viii)	The appellant shall not re-offend while on bail. 

	

		Hon. Mr. Justice C. Prematilaka
		JUSTICE OF APPEAL