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Solomone v State [2021] FJHC 373; HAA036.2020 (8 December 2021)

IN THE HIGH COURT OF FIJI

AT LABASA

[CRIMINAL JURISDICTION]

CRIMINAL APPEAL NO. HAA 036 OF 2020

DAVID SOLOMONE

V

STATE

Counsel: Ms M Tuiloma for the Appellant

Ms J Fatiaki for the Respondent

Date of Hearing: 18 November 2021

Date of Judgment: 8 December 2021

JUDGMENT

[1] On 24 August 2020, the Appellant was sentenced in the Magistrates’ Court at Savusavu to an aggregate term of 14 months and 25 days imprisonment with a non-parole period of 8 months for burglary and theft. This sentence was made cutsecutive to the appellant’s pre-existing sentence.

[2] On 11 November 2020, the appellant filed an untimely appeal against his sentence. He seeks an enlargement of time teal.

[3] The fThe factors to be considered for an enlargement of time to appeal 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 court's 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? (Kumar v State; Sinu v State [2012] FJSC 17; CAV0001.2009 (21 August 2012)

[4] The list is not exhaustive. Ultimately, the test is whether grave injustice might result if an enlargement of time to appeal is not granted (Rasaku v State [2013] FJSC 4; CAV0009, 0013.2009 (24 April 2013)).

[5] When the sentence was pronounced, the appellant was present in court. He was informed that he had 28 days to appeal to the High Court.

[6] The appeal was filed on 11 November 2020. The appeal is late by about 51 days. No reasons have been advanced for the delay.

[7] Initially, the Appellant filed four grounds of appeal. At the hearing he abandoned all except one. His only complaint is that the learned magistrate erred in law by making his sentence consecutive.

[8] When the learned magistrate sentenced him in this case, the appellant was serving a term of 11 months imprisonment for a similar offence in another case.

[9] In e wher where there were separate acts of burglary and theft involving two different victims, it is well within the sentencing discretion for the sentences to be imposed consecutively. The true question being one of the appropriateness of the overall sentence, that is whether it reflects the totality of the criminality involved (Wong Kam Hong v. The State [2003] FJSC 13).

[10] It is clear that the appellant is a recidivist. He has 16 previous convictions for similar offences. His guilty plea was not an early guilty plea. He only pleaded guilty in this case after he was sentenced to a term of imprisonment in another case. Reduction was made to reflect the appellant’s remand period.

[11] The appellant broke into a supermarket and stole substantial cash and assorted items. The learned magistrate said that it was the court’s duty to denounce the crime. He also considered the proportionality principle before making the sentence consecutive. The total sentence is within the permissible range.

[12] No error of law is shown in relation to sentence.

[13] Enlargement of time is granted but the appeal is dismissed.

. ...........................................

Hon. Mr Justice Daniel Goundar

Solicitors:

Office of the Director of Public Prosecutions for the State

Legal Aid Commission for the Accused