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State v Ceinaturaga [2008] FJHC 330; HAM113.2008 (28 November 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO.: HAM 113 OF 2008

BETWEEN:

THE STATE
Applicant

AND:

VETAIA CEINATURAGA
Respondent

Counsel: Ms. N. Tikoisuva for the State
Respondent in Person

Date of Hearing: Friday 7th November, 2008
Date of Ruling: Friday 28th November, 2008

RULING

[1] This is an application by the State for an extension of time to appeal against sentence of 2½ years imprisonment imposed on the respondent by the Magistrates’ Court on 18 March 2008 for an offence of robbery with violence.

[2] The respondent also appealed against sentence but after seeking legal advice, he withdrew his appeal on 3 October 2008. The respondent was granted leave to withdraw his appeal (see, Ceinaturaga v The State, Crim. Misc. Case No. HAM 074/2008).

[3] The application by the State was filed on 9 October 2008; three days after the respondent withdrew his appeal. The appeal is out of time by nearly six months. The reason for the delay is stated in the affidavit in support of the application, by Mr. Maciu Nacaucaulevu, Litigation Officer with the Office of the Director of Public Prosecutions. Paragraph 8 of the affidavit states:

(a) That by virtue of section 310(1) of the Criminal Procedure Code, the Director of Public Prosecutions was not represented at the sentencing of the Respondent and was not aware of the matter;

(b) That the State had difficulty in obtaining relevant information pertaining to the determination for an Appeal.

[4] The principles to be applied when considering an application for leave to appeal out of time are the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for the delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the other party (State v Patel, Criminal Appeal No. AAU0002 of 2002S).

[5] For the purpose of this application, there is little doubt that the appeal has strong prospect of success. Robbery with violence is a serious offence and this was a case of home invasion robbery on an elderly man. The facts were succinctly summarized in HAM 074/08 as follows:

"...on 22 February 2008 at 9.00pm, the applicant entered the house of the complainant who was asleep. The complainant was an elderly man in his late seventies. The applicant struck the complainant with a glass louver when the complainant woke up and confronted the applicant. The applicant fled the house with some cash. The complainant’s hand was injured. The injury was not serious. The offence was committed in the company of two other men. The applicant received $700.00 in foreign currencies as his share from the theft. Nothing was recovered. The applicant had two other convictions for robbery with violence for which he was sentenced to suspended terms of imprisonment in 2002".

[6] The hurdle for the State is not the merits of the appeal but the other prerequisites for leave to appeal out of time.

[7] I am not satisfied that the reason advanced for the delay by the State is compelling. The Office of the Director of Public Prosecutions contends that they were unaware of the sentence imposed on the respondent because the prosecution was represented by the police in the Magistrates’ Court.

[8] While I accept that most criminal offences in the Magistrates’ Courts are prosecuted by the police, I cannot accept the contention that the Office of the Director of Public Prosecutions has no control over those cases. The police prosecutors are not legally qualified lawyers. The police derive the authority to prosecute from statute, namely, s. 75 of the Criminal Procedure Code. That power is subject of directions of the Director of Public Prosecutions (s. 76(1) of the Criminal Procedure Code).

[9] By virtue of s. 76 of the Criminal Procedure Code, the Director of Public Prosecutions is responsible to put into operation a procedure where lenient sentences imposed in cases prosecuted by the police are brought to his attention without delay for review. Without such a procedure in place to check the appropriateness of a sentence, any claim of lack of knowledge of the existence of a lenient sentence would not be given much weight by the courts. I say this because under the Criminal Procedure Code the right of appeal against inadequacy of a sentence is granted to the Director of Public Prosecutions and not the police prosecutors, and therefore it becomes the Director’s duty to file timely appeals.

[10] The application was obviously filed by the State after this Court expressed concerns about the appropriateness of sentence when the respondent appealed it. The appeal was not brought by the State of its own initiative.

[11] To now extend time for the State to appeal against sentence after a long delay would be quite unfair to the respondent. The State is effectively seeking an enhancement of the sentence after the respondent has served a substantial term of his sentence. An application to appeal out of time against sentence should not prejudice an unrepresented prisoner. An inappropriate sentence should be timely appealed by the State so that the offender is not prejudiced by the delay. By delaying, the State has deprived itself from a right of appeal.

[12] For these reasons the application by the State for an extension of time to appeal against sentence is refused.

Daniel Goundar
JUDGE

At Suva
Friday 28th November, 2008

Solicitors:
Office of the Director of Public Prosecutions, Suva for the Respondent
Respondent in Person