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Delana v The State [2005] FJHC 173; HAM0034J.2005S (8 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Criminal Misc. Case No: HAM0034 of 2005

Between:

FILIPE DELANA
Appellant

And:

THE STATE
Respondent

Hearing: 6th July 2005
Judgment: 8th July 2005

Counsel: Appellant in Person
Mr. A. Ravindra-Singh for State

JUDGMENT

This was initially an application for leave to appeal out of time. However, because the court record shows that the learned Magistrate refused leave on the 7th of April 2004, I have treated the application as an appeal from that refusal.

The Appellant wishes to appeal against the imposition of 6 months imprisonment, for escaping from lawful custody on the 15th of October 2001. The sentence was ordered to be served consecutive to a 3 year and 3 months term imposed for robbery with violence, in June 2001.

The Appellant then appealed against that sentence in February 2004, but his application for enlargement of time was dismissed on the 7th of April on the ground that he had not shown good cause.

In his application/appeal to this court, he made written submissions saying that his appeal was delayed because he was in custody and could not easily file an appeal. He further submitted that he should not have been given a consecutive term because other persons had served sentences for escaping, concurrently. Thus, he says his appeal has merits.

The State opposes the appeal, saying that the Appellant is no novice to the justice system, and that the delay of more than 2 years was unacceptable. He said that in any event, the 6 month consecutive term was right in principle.

The appeal period can be enlarged for good cause. This may include the Appellant’s difficulties in obtaining the court record, lack of legal representations, and constraints suffered in custody. The appeal period may also be enlarged where there are obvious merits in the appeal.

In this case, I am not satisfied that there was good cause. As State counsel quite rightly says, the Appellant has successfully lodged appeals in the past, whilst in custody, without apparent difficulty. It is difficult to accept that he could not have similarly lodged an appeal in this case. The courts are always willing to accept letters of appeal from prisoners, instead of a properly drafted petition of appeal.

Further, I see no merit in the appeal. The 6 month term of imprisonment was within the tariff for escaping from lawful custody cases. In almost all cases, the sentence must run consecutive to the sentence being served, because there would otherwise be no deterrent value in the sentence. The Appellant’s appeal is therefore unlikely to succeed. It is now almost 4 years since the date of conviction and sentence.

I am not satisfied that good cause was shown to enlarge time, and I consider that the learned Magistrate did not err when he refused to grant leave to appeal.

This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
8th July 2005