IN THE HIGH COURT OF THE FIJI ISLANDS
MISCELLANEOUS JURISDICTION
AT SUVA

Criminal Miscellaneous Case No : HAM 088 of 2007

BETWEEN

SUKULU TIKOITOGA
Applicant

AND

THE STATE
Respondent

Applicant in Person
Ms L. Lagilevu for the Respondent

Date of Hearing: 14 March 2008.

RULING

1.	Sukulu Tikoitoga, you are the applicant in this matter.

2.	You have applied for Leave to Appeal Out of Time. You were convicted for one count of Larceny, contrary to sections 259 and 262(1) of the Penal Code Cap 17 on 13 April 2007. You were sentenced to 12 months imprisonment on 18 April 2007. That sentence was also ordered to be served consecutive to any term of imprisonment you were serving. 

3.	The prescribed period for lodging an appeal is 28 days. This means that you had to file your petition of appeal on or before 17 May 2007. You did not do that. 

4.	However, on 27 September 2007 you submitted an application in letter form seeking leave of the court to appeal out of time. Your application was 4 months 11 days out of time. 

5.	On receipt by the Magistrates Court registry, your leave application was not listed before me until the 2 November 2007. The reason for this delay became obvious later. The court file and the records of your trial in the magistrates Court is missing.

6.	On that day I ordered that the Court Records of the trial in the Magistrates’ Court be prepared and submitted to the High Court to allow that court to determine leave application and the subsequent appeal.

7.	I also decided that in the particular circumstances of this case Leave to Appeal out of time be granted because of the difficulty in obtaining the court record and the delay already evident in the case.

8.	In the meantime the applicant who is exercising his constitutional right (section 28(l) of the Constitution) to appeal is being frustrated because of the negligence of the registry staff in the Suva Magistrates Court. 

9.	As of today, the case file is still missing and the applicant is still unable to prosecute his appeal. This is a totally unacceptable state of affairs for which the applicant is not responsible for but highly prejudiced him in causing an inordinate delay in the hearing of his appeal.

10.	This Court with the assistance of its staff have been able to obtain the following:

i)	A copy of the judgment delivered by RM Ajmal Khan on 18 April 2007 in Suva Magistrate Court Juvenile Case No; 67 of 2006;

ii)	A copy of the Warrant of Commitment on Conviction Where the Punishment is by Imprisonment for Sukulu Tikoitoga, dated 18 April 2007;

iii)	A copy of the Charge Statement against Sukulu Tikotoga

11.	From the above the following facts are established:

•	The applicant was sentence to 12 months imprisonment to be served consecutive to the existing sentence he was serving on the 18 April 2007;

•	The applicant Sukulu Tikoitoga chose to remain silent and did not offer any evidence in his defence.

•	The learned Magistrate on his own motion considered the applicant’s caution interview statement, wherein the applicant claim that the $330.00 found on him by the police was given to him by his aunt. The police tried and were unable to locate Monica the applicant’s aunt that is suppose to have given him the money. 

•	The analysis of the evidence that was called by the prosecution and reviewed by the learned Magistrate in his judgment is sufficient to support his finding that the applicant was indeed guilty as charged. 

12.	During you trial you did not raise the claim you now make that the $330.00 found on you when you were arrested by police was given to you by your aunt. It is now too late to raise this matter on appeal.

13.	In the light of the above, I find that the appeal against conviction has no merit and is dismissed.

14.	I now consider the sentence passed by the Learned Magistrate. The tariff for simple larceny under sections 259(1) and 262 of the Penal Code Cap 17 is 18 months to 3 years: Lanyon v The State [2004] FJHC 126 (HAA 042 of 2004). In this case, the sentence ruling is not available. However a 12 months imprisonment sentence for a juvenile with previous convictions is not harsh nor excessive: Manasa Lesuma v. The State [2004] FJHC 490 

15.	On whether the learned magistrate was correct in ordering that the sentence be served consecutively with any prison term the applicant was serving has attracted my attention. In the case before the learned Magistrate there was only one charge and the sentence he imposed was correct as it relates to that charge. This court is unable to establish the basis on which the learned Magistrate’s discretion was exercised in making the consecutive sentence order. 

16.	In my view the interest of justice on the facts of this case is served by the 12 months imprisonment sentence. It was not necessary to make that sentence consecutive to any term of imprisonment the applicant was serving at the time. That is the conclusion I have reached: see Aborosio Ikanidevo v The State [2002] FJHC 81(HAA 007 of 2002)

ORDERS

17.	In the light of the above, I make the following orders:

i)	The appeal against conviction has no merit and is dismissed

ii)	The appeal against sentence partially succeeds to the extent that the 12 months imprisonment is to be served concurrently not consecutively with any other term of imprisonment the applicant was serving, effective from 18 April 2007.

Isikeli Mataitoga
JUDGE

At Suva
18 March 2008.