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Luvunakoro v State [2014] FJHC 84; HAM258.2013 (21 February 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: HAM 258 OF 2013

BETWEEN:

ANARE LUVUNAKORO
Applicant

AND:

STATE
Respondent

Counsel: Applicant in Person
Ms Shelyn Kiran for Respondent

Date of Hearing: 11 February 2014
Date of Ruling: 21 February 2014

RULING

1. This is an application for leave to appeal out of time.
   
2. The applicant was charged before the Magistrate Court of Nadi with one count of Act with Intent to Cause Grievous Harm contrary to Section 224 (a) of the Penal Code and second count of Robbery with violence contrary to Section 293 (1) (a) of the Penal Code.
   
3. The facts of the case are that the applicant together with two others entered K & K Mini Supermarket around 7.30 p.m. and while the two accomplices holding the security guard the applicant struck that person with a cane knife three times on the head. The security guard managed to free himself and ran away. Then applicant threatened the shop owner Ms. Kamani Lata and stole goods to the total value of $2411.00. These were passes to the two accomplices waiting outside and all of them then fled the scene.
   
4. He pleaded guilty to both charges and admitted the summary of facts and accordingly convicted by the learned Magistrate. On 20.1.2012 he was sentenced for 18 months imprisonment for the 1st count and 5 years 10 months imprisonment for the 2nd count. Both sentences to run concurrently with a non parole period of 4 years and 6 months. Further this sentence to be served concurrently to any imprisonment he was already serving.
   
5. This appeal out of time against the sentence dated 1.4.2013 was submitted to the registry of the High Court on 17.6.2013, thus 1 year 5 months out of time.
   
6. The reasons given for the delay are that:
   
   • (i) That he totally rely on his application filed through prison administration within the prescribed time limit of 28 days, and failure of the same to reach the High Court Registry is something beyond his control,
     
   • (ii) That application was filed after the assurance of the registry that his application was not received as anticipated.
     
7. In his submissions filed he had also taken up the ground that he is unskilled and lay litigant in the criminal justice system and he was unrepresented and he did not have the necessary legal knowledge on appeal. Therefore he was unable to make enquires with the registry and the prison.
   
8. The Section 248 of the Criminal Procedure Decree provides:
   
   • (1) Every appeal shall in the form of a petition in writing signed by the appellant or the appellant's lawyer, and within 28 days of the date of the decision appealed against-
     
     • (a) it shall be presented to the Magistrates Court from the decision of which the appeal is lodged;
       
     • (b) a copy of the petition shall be filed at the registry of the High Court; and
       
     • (c) a copy shall be served on the Director of Public Prosecutions or on the Commissioner of the Fiji Independent Commission Against Corruption.
       
   • (2) The Magistrates Court or the High Court may, at any time, for good cause, enlarge the period of limitation prescribed by this section.
     
   • (3) For the purposes of this section and without prejudice to its generality, "good cause" shall be deemed to include-
     
     • (a) a case where the appellant's lawyer was not present at the hearing before the Magistrates Court, and for that reason requires further time for the preparation of the petition;
       
     • (b) any case in which a question of law of unusual difficulty is involved;
       
     • (c) a case in which the sanction of the Director of Public Prosecutions or of the Commissioner of the Fiji Independent Commission Against Corruption is required by any law;
       
   • (d) the inability of the appellant or the appellant's lawyer to obtain a copy of the

judgment or order appealed against and a copy of the record, within a

reasonable time of applying to the court for these documents.

9. The principles for an extension of time to appeal are settled. The Supreme Court in Kumar v State; Sinu v State [2012] FJSC 17; 2 CAV0001.2009 (21 August 2012) summarized the principles at paragraph [4]:
   

"Appellate courts examine five factors by way of a principled approach to such applications. These factors 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 courts 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?"

10. More recently, in Rasaku v State [2013] FJSC 4; CAV0009, 0013.2009 (24 April 2013), the Supreme Court confirmed the above principles and said at paragraph [21]:
    

" These factors may not be necessarily exhaustive, but they are certainly convenient yardsticks to assess the merit of an application for enlargement of time. Ultimately, it is for the court to uphold its own rules, while always endeavoring to avoid or redress any grave injustice that might result from the strict application of the rules of court. "

11. The applicant has previous convictions and therefore cannot be considered as a novice in the Criminal Justice system. The fact that he had lodged an appeal within time is not supported with any document or affidavit. There is no merit in the grounds for delay.
    
12. The length of the delay is substantial. A delay of 17 months from the making of the order can only be regarded as excessive. The reasons for the delay of this magnitude are unconvincing. None of the reasons advanced can justify a delay of this magnitude.
    
13. In Cama v The State [2009] FJCA 37;AAU 0027.2009(26 October 2009) it was held by Hon. Mr. Justice John E. Byrne that:
    

"On the 11th of September 2009 the applicant wrote to the Registry making an application for leave to appeal out of time against conviction and sentence. He said that in that letter that the reason for his undue delay was that his first application which was lodged in time had been misplaced by the Registrar of this Court in Suva. He claimed that the delay was not of the applicant's making but that the Registrar.

This caused me to enquire from the registry whether there was any truth in this allegation and I was told there was not; that the application had been received on the date stamped on it namely 5th October 2009.

When I put this to the applicant he then said that the mistake had been by the Prison Authorities and not of the Court of Appeal Registry. I immediately concluded that the appellant was inventing an excuse which he could not justify.

Normally this Courts makes an allowance of approximately three months for the filing of an application for leave to appeal out of time from a judgment of the High Court because this Court realizes that prisoners are at disadvantage compared with other persons not incarcerated in filing appeals within time.

The Applicant could give me no satisfactory reason for his failure to lodge his application within at the latest three months from 9th October 2008. Practically this meant that his application for leave should have been filed no later than end of January 2009. It is therefore 9 months overdue. For this reason I dismiss the application because no satisfactory reason has been given for the delay."

14. However considering the fact that the applicant was not represented at the Magistrate court, this court considered the grounds of appeal on sentence in order to ascertain any substantial prejudice had been caused to the applicant or there are grounds of merit justifying this court's consideration.
    
15. The grounds of appeal against the sentence are:
    
    • (i) That the balancing of aggravating and mitigating factors is erroneous in the sentencing.
      
    • (ii) That the learned Trial Magistrate erred in law in failing to apply the four classical principals of sentencing in imposing the sentence.
      
    • (iii) That the learned Trial Magistrate erred in law taking irrelevant matters into consideration and failed to take into account relevant considerations.
      
    • (iv) That the 4 years 6 months non-parole period is manifestly harsh and excessive.
      
16. For the first count learned Magistrate had taken a starting point of 2 years. He had followed the tariff judgment State v Mokubula [2003] FJHC 164; HAA0052J.2003S. He had cited the following from the judgment.
    

'The tariff for the sentences under section 224 of the Penal Code is between 6 months imprisonment to 5 years imprisonment. In a case of an attack by a weapon, the starting point should range from 2 years imprisonment to 5 years, depending on the nature of the weapon. Aggravating factors would be:

1. Seriousness of the injuries
2. Evidence of premeditation and planning

100. Length and nature of the attack

4. Special vulnerability of the victim

Mitigating factors would be:

1. Previous good character
2. Guilty plea

100. Provocation by the victim

4. Apology, reparation or compensation'
   

17. In considering the circumstances of this case the starting point of 2 years is appropriate and just.
    
18. The learned Magistrate had deducted 4 months for mitigation and another 6 months for the guilty plea which was not at the first available opportunity.
    
19. Then for the planning involved and seriousness of the injuries sentence was increased by 4 months. The final sentence for the first count was 18 months imprisonment.
    
20. The Magistrate had picked a starting point of 7 years after following the judgment of Sakiusa Basa v State Criminal Appeal No. AAU0024 of 2005 for the 2nd count of robbery with violence. He had stated that the current tariff for the robbery with violence seems to range from 4-11 years imprisonment, starting point to be determined by the circumstances of the case.
    
21. The tariff for robbery with violence is 7 to 10 years as observed by Hon. Mr. Justice Paul Madigan in Baleinakeba v State [2010] FJHC 207;HAA008.2010. The Hon. Judge had observed that:
    

"A tariff of 4-8 years may have at one time been appropriate tariff, but it is certainly no longer. In adopting the dicta of the Fiji Court of Appeal in Basa's case CA AAU 24 of 2005 the Fiji Courts are now following the English line of cases for robbery with violence and not more lenient New Zealand authorities. In the High Court, the tariff is more within the range of 10 to 15 years considering, and given the jurisdictional restraints of the Magistrates Court, I would venture that the proper tariff there now should be 7 to 10 years."

22. Therefore the learned Magistrate had followed correct tariff judgments and arrived at a starting point which is appropriate given the circumstances of this case.
    
23. For the mitigation and remorse 1 year was deducted from the sentence. For the guilty plea although is not early 2 years were deducted. Then for aggravating features including the use of weapon, injury caused to the security guard and planning involved 2 years were added to the sentence. The time period of 2 months in remand was deducted arriving at the final sentence of 5 years and 10 months.
    
24. The sentences for both counts were made to run concurrently by the learned Magistrate.
    
25. The learned Magistrate acting under Section 18 (1) of the Sentencing and Penalties Decree had ordered that applicant serve a non-parole period of 4 years and 6 months.
    
26. According to Section 18 (4) of the Sentencing and Penalties Decree 'Any non-parole period fixed under this section must be at least 6 months less than the term of the sentence.'
    
27. The learned Magistrate had acted under Section 22(1) of the Sentencing and Penalties Decree and ordered that the sentence to be served concurrent to any imprisonment term applicant is serving.
    
28. The sentences are well within the accepted tariff for the offences. The Magistrate has not made any error of law in passing the sentence, and in the circumstances those are entirely appropriate sentences.
    
29. Considering all above, leave to appeal out of time against the sentence is refused.
    

Sudharshana De Silva
JUDGE

At Lautoka
21st February 2014

Solicitors: Applicant in person
Office of the Director of Public Prosecutions for Respondent