IN THE HIGH COURT OF FIJI
AT LABASA
[APPELLATE JURISDICTION]

CRIMINAL APPEAL CASE NO. HAA02 OF 2018
(Magistrates’ Court Case No. 316 of 2015)

BETWEEN:		MOSESE CAGILABA
APPELLANT
AND:			THE STATE
RESPONDENT

Counsel:	Appellant in Person
		Mr R Kumar for the Respondent

Date of Hearing:	23 February 2018
Date of Judgment:	02 March 2018

JUDGMENT

[1]	This is an application to re-instate an appeal that the appellant had earlier abandoned.

[2]	On 7 November 2015, the appellant was arrested on an allegation of burglary.  On 9 	November 2015, the appellant was charged with burglary and theft and produced in 	the Magistrates’ Court at Savusavu.  The appellant was remanded in custody and the 	case was adjourned to 19 November 2015.  On 19 November 2015, the appellant 	elected to be tried in the Magistrates’ Court.  He was released on bail.  The case was 	adjourned to 12 January 2016.

[3]	On 12 January 2016, the appellant waived his right to counsel and pleaded guilty to 	the charges.  He admitted the facts that he entered the dwelling house of the victim 	and stole items to a total value of $8,110.00.  $3,900 worth of items were recovered 	upon arrest.

[4]	In mitigation, the appellant said he was 33 years old, married and unemployed.  He 	had previous convictions but had not re-offended for the last 7 years.  The 	sentencing 	was adjourned to 13 April 2016 and the appellant’s bail was extended.

[5]	On 13 April 2016, the appellant did not appear in court for sentencing.  A bench 	warrant was issued for his arrest and the sentencing was postponed.

[6]	On 24 December 2016, the appellant was arrested.  He remained in custody until 3 	March 2017, when he was sentenced to a total term of 17 months and 20 days 	imprisonment with a non-parole period of 10 months.

[7]	The appellant’s only complaint is that the learned Magistrate had miscalculated his 	remand period when giving him a discount in the sentence.

[8]	In sentencing the appellant, the learned Magistrate gave him a discount of 10 days to 	reflect the remand period.  Counsel for the State concedes that the appellant had been 	in custody on remand for about 81 days before he was sentenced.

[9]	The appellant was remanded in custody from 7 November 2015 to 19 November 2015 	and 24 December 2016 to 2 March 2017.  The remand period is about 2 months and 3 	weeks.

[10]	Section 24 of the Sentencing and Penalties Act 2009 requires the court to take into 	account any period that the accused had spent in custody while on remand.  While the 	courts are obliged to consider the time spent in custody while on remand, no precise 	formula is required to discount the remand period (Maya v State unreported Cr App 	No. AAU0085 of 2013; 14 September 2017 at [13]).

[11]	In the present case, the appellant’s remand period was taken into account by the 	sentencing court. The complaint is that the actual period the appellant had spent in 	custody while on remand was not discounted.

[12]	After the sentence was pronounced on 3 March 2017, the appellant filed an appeal 	against sentence on 12 May 2017.  The handwritten Notice of Appeal is dated 27 	April 2017.  But by the time the Department of Corrections forwarded that Notice to 	court registry, the appeal was out of time by about one month.

[13]	On 20 July 2017, the case was called in the High Court for hearing.  The appellant 	appeared in person and the following exchanges took place between the appellant and 	the judge according to the audio recordings:

Criminal Appeal No. 10 of 2017
Between:	Mosese Cagilaba and State
Judge		:	Thank you
Mr. Kumar	:	May  I  please  record  counsel  Kumar  initial  R  for  the 					Respondent in this matter my Lord.
Judge		:	Right, thank you.
				Mr. Cagilaba is anyone appearing for you.
Appellant	:	In person my Lord.
Judge		:	In Person - What is his appeal about? Has he got a copy of the 				court record?
Mr. Kumar	:	Yes my Lord both parties received – were provided with the 				copies and the last two pages…
Judge		:	The submissions been received.
Mr. Kumar	:	No my Lord, today was for Mr. Cagilaba’s submissions.  On 				the  last  two  pages  uh  Respondent  object  to  leave being 				allowed my Lord and leave was granted.
Judge		:	And he was sentenced to how long.
Mr. Kumar	:	My Lord, he was sentenced for Burglary – 17 months and 20 				days and Theft – 8 months imprisonment non-parole period of 				10 months, my Lord.
Judge		:	Mr. Cagilaba, appeal – it’s my duty to advise you, right.  An 				appeal 	is a - it’s like a gamble you making a gamble.  
1.	That’s favourable to you is the conviction overturn alternatively the sentence reduced that is with the one upstairs listens to your prayers the other option is this, with the one upstairs doesn’t listen to your prayers your sentence could be increased, right. So when you appeal a judgment from the Magistrate Court you really taking a risk.  I’m sure you’ve gone to a hibiscus festival where this gambling, appeal is a bit like that you are gambling.  A result that’s favourable to you, a result that is not favourable to you.  So I’m obliged to advise you of that because I don’t want people who appeal to have the mistaken belief that just because you appeal your sentence may be reduced.  Should been like when you appealing it should been like you kicking a rugby ball. Sometimes when you kick it will lands go sideways or it goes up, right.  Do you understand what I’m talking about?
Appellant	:	Yes, my Lord.
Judge		:	Okay- My advice to you  is not meant  to  threaten  you, is 				meant  to  put  you in a proper perspective of the process of 				appeal.
				Okay, you want to continue or you do not want to continue.
Appellant	:	My Lord the very reason why I would like to appeal is because 				the 2 months in my remand was not being considered.
Judge		:	That will all be taken into account.  It can re-considered, it 				also if I look at the facts I haven’t look at it yet, right.  Once I 				open the file and look at it, if  I think the Magistrate is too 				lenient on you I can increase the sentence, right.  If I see the 				Magistrate is  too hard on you I can decrease  the sentence, 				right.  Uh you see in Fiji, in Suva particularly the business of 				breaking to houses very common.  A lot of people in Fiji now 				is  not  only  in Vanua Levu is  also very  prevalent in Suva 				where   I   sit.   The   breaking  of   houses  and   stealing   is 				becoming a everyday problem, right. It appears that respect 				for people property no longer there. Some people are caught 				some people are not caught.  For those who are caught who are 				brought  into  the court house must realise.  In my court no 				mercy  is  given  to  them  if they are found guilty because I 				believe that if you want property you got to work for it, work 				hard, sweat, earn your life the honest way, right.  Vanua Levu 				is very rich in soil.  Just hearing now some youths 	somewhere 				in  Vanua Levu  planting  yaqona reaping the benefit.  Here 				I come to court every day I see the opposite side of the story.  				A lot of people steal easy way of living.  
				Now up to you, prosecutor were any of these property 					recovered.
Mr. Kumar	:	My Lord there were a recovery of $3,900 was approximately…
Judge		:	$3,000?
Mr. Kumar	:	$3,900 my Lord.
Judge		:	And the sentencing principle applied by the learned Magistrate 				is correct.
Mr. Kumar	:	My Lord we do have some points to concede to Mr Cagilaba’s 				appeal.
Judge		:	Right
Mr. Kumar	:	The aggravating factors point my Lord, uh on page 2 of the 				sentence.
Judge		:	Okay, uh okay Mr Cagilaba no need for papers to be filed.  				Obviously you want to proceed with your appeal.  You’re 					given 17 months, is it?
Appellant	:	Yes my Lord.
Judge		:	You want to appeal.
Appellant	:	Withdraw
Judge		:	You want to withdraw.
Appellant	:	Yes my Lord.
Judge		:	You know the consequences of your withdrawal that you 					cannot re-open this matter.
Appellant	:	Yes
Judge		:	Right – Appellant you doing so voluntarily and out of your 				own free will.
Appellant	:	Yes my Lord.
Judge		:	So I have recorded you, you’d like to withdraw your appeal 				after you listening to the High Court’s advice, correct?
Appellant	:	Yes, my Lord.
Judge		:	You are doing so out of your own free will.
Appellant	:	Yes my Lord.
Judge		:	And no one force you to do so.
Appellant	:	Yes my Lord
Judge		:	Right, you understand you will not be able to re-open your 				case.
Appellant	:	Yes my Lord.
Judge		:	Right, thank you.
				Respondent you have any objection?
Mr. Kumar	:	I don’t have any objection my Lord.
Judge		:	No objection
				Leave is granted to the appellant to withdraw his appeal.
				Right, case dismissed.  You have done the right decision Mr 				Cagilaba, right- thank you.
				Stand down
				Next case

[14]	It is clear that the appellant made the decision to withdraw his appeal after the learned 	judge advised him of the possibility of his sentence being enhanced on appeal.  The 	advice was unfortunate as the appellant had a legitimate complaint regarding 	incorrect discounting of his remand period.

[15]	But the hurdle now is the jurisdiction to re-open an appeal that was dismissed after the 	appeal was withdrawn.  After the learned judge gave the appellant leave to withdraw 	his appeal, he dismissed the appeal. Once the appeal is dismissed, there is no 	jurisdiction to re-open the appeal (Masirewa v State [2010] FJSC 5; CAV0014.2008S 	(17 August 2010).  For these reasons, the present application is dismissed for want of 	jurisdiction.

							…………………………….. …….
							Hon. Mr Justice Daniel Goundar

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