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Waqa v The State [2002] FJHC 129; HAA0031J.2002S (28 June 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0031 OF 2002
(Suva Cr. Case No. 1093/01)

Between:

MANASA WAQA
Appellant

And:

STATE
Respondent

Hearing: 21st June 2002

Judgment: 28th June 2002

Counsel: Appellant in Person
Mr D. Prasad for Respondent

JUDGMENT

The Appellant was convicted on his plea of guilty on the 25^th of April 2001 of the following offence:

Statement of Offence

HOUSE BREAKING ENTERING AND LARCENY: Contrary to Section 300(a) of the Penal Code, Act 17.

Particulars of Offence

MANASA WAQA, on the 23^rd day of April 2001 at Samabula in the Central Division, broke and entered into the dwelling house of JAGDISH MAHARAJ s/o Lal Chand Maharaj and stole therein cash of $45.00, a gold ring with pendant valued $225.00, a portable radio valued $25.00 and toiletries valued $50.00, all to the total value of $345.00, the property of the said JAGDISH MAHARAJ s/o Lal Chand Maharaj.

He was sentenced to 2 years imprisonment to be served consecutively to his existing term of imprisonment. He was then serving a series of terms of imprisonment (from January 1999) for burglary, robbery with violence, and shop-breaking. He now seeks leave to appeal his sentence out of time.

His reasons for the late filing of his petition of appeal are that he was unable to get a copy of the court record until January 2002, and that, as a lay person who was (and is) unrepresented it was difficult for him to get information about the case.

The State opposes the application, saying that the appeal is bound to fail and that no good grounds have been given for the application.

The principles relevant for an enlargement of time to appeal under section 310 of the Criminal Procedure Code include the inability of the Appellant to obtain a copy of the court record or the presentation of a ground of appeal which raises a question of law Aof unusual difficulty.@ The merits of an appeal, and good reasons presented for the delay, are also relevant.

In this case, although the Appellant was convicted and sentenced on 25^th April 2001 he did not request a copy of the record of the proceedings until January 2002. He does not explain why he took so long to request the court record. Once he had made his request, the record was supplied (although no petition of appeal had been filed) by the Magistrates= Court, with commendable speed. I do not accept that the Appellant has shown that he was unable to get the court record on time.

Further, the appeal is devoid of all merit. The charge is not defective, and although the Appellant was not told of his Constitutional right to counsel, the facts disclose all ingredients of the offence. They are that the Appellant, who was an escapee from Naboro prison, broke into the complainant=s house while it was vacant. The complainant=s neighbours heard the noise of the break-in, and called the complainant from his place of work at the Tamavua Rehabilitation Hospital. They surrounded the house and confronted the Appellant who tried to run away. He was apprehended by the police who charged him with the offence.

The learned Magistrate started at 3 years imprisonment, and gave him one-third discount for the guilty plea. He was sentenced to two years imprisonment to be served consecutive to his existing terms of imprisonment. The sentence is within the tariff, and does not offend the totality principle. He is now serving a total of nine years imprisonment from 1999, which is not an inappropriate term for a series of offences including two for robbery with violence. The Appellant, in his submissions in court expressed a desire for rehabilitation, and said that he had benefited from the Prison Fellowship programme. However, the courts have a duty to punish those who habitually commit offences of robbery, and house-breaking, in order to deter the offender and to protect the public. The consecutive sentence of two years imprisonment therefore did not offend the totality principle of sentencing. The appeal is therefore bound to fail.

The application for enlargement of time is refused on the ground that the Appellant has failed to show good cause for the enlargement.

Nazhat Shameem
JUDGE

At Suva
28^th June 2002