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Prasad v State [2024] FJHC 521; HAA82.2023 (30 August 2024)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 82 of 2023

BETWEEN :
SHIU PRASAD
APPLICANT

A N D :
THE STATE
RESPONDENT

Counsel : Ms. K. Kumar and Mr. B. Makanji for the
Applicant.
: Ms. S. Naibe for the Respondent.

Date of Hearing : 28 August, 2024
Date of Ruling : 30 August, 2024

RULING
[Application for leave to appeal out of time]

BACKGROUND INFORMATION

1. The applicant was charged in the Magistrate’s Court at Ba for two separate offences in two separate files.
   
2. The charges were as follows:
   

FILE NUMBER CF 382/17

Statement of Offence

OBTAINING FINANCIAL ADVANTAGE BY DECEPTION: Contrary to section 318 of the Crimes Act 2009.

Particulars of Offence

SHIU PRASAD on the 30^th day of June, 2017 at Varadoli, Ba in the Western Division, by deception dishonestly obtained $150.00 from Jayant Patel.

FILE NUMBER CF. 383/17 (Amended Charge)

Statement of Offence

OBTAINING PROPERTY BY DECEPTION: Contrary to section 317 (1) of the Crimes Act 2009.

Particulars of Offence

SHIU PRASAD sometimes in May, 2017 at Votua, Ba in the Western Division by deception, dishonestly obtained a DVD Deck valued at $250.00, the property belonging to Mohammed Samil with the intention of permanently depriving the said Mohammed Samil of the property.

3. The applicant pleaded not guilty and when the matter was assigned a hearing date on two occasions the applicant did not attend court but provided his medical certificate and Form 62.
   
4. On 12^th April, 2022 the applicant was present in court and the matter was assigned a hearing date for 16^th and 19^th September, 2022 for both files. The applicant was represented by counsel, the learned Magistrate at this time told the applicant to appear on the dates of the hearing otherwise the court would proceed in his absence.
   
5. When the files were called on 16^th September, the applicant did not appear but had through his counsel forwarded his medical certificate and discharge summary from Korovou Hospital with his Form 62.
   
6. According to the learned Magistrate this was the third time the applicant had forwarded his Form 62 on the trial date. The prosecution made an application for trial in absentia under section 14 (2) (h) of the Constitution. The defence counsel opposed the application by stating that cognizance ought to be given to the Form 62 filed in court and the matter be adjourned to another date.
   
7. The learned Magistrate ruled that the applicant was deliberately delaying the hearing of the matter and therefore his reason for not attending court was not genuine. In her written ruling dated 16^th September, 2022 the learned Magistrate stated that the trial will proceed in the absence of the applicant.
   
8. Both files were heard by the learned Magistrate in absentia. The prosecution called two witnesses in each file and by judgment dated 5^th October, 2022 the applicant was found guilty and convicted for both the offences. On 11^th October, 2022 the applicant was sentenced in absentia to 3 years imprisonment for each count in each file to be served concurrently with a non-parole period of 2 years and 2 months.
   

APPEAL TO THE HIGH COURT

9. After the applicant was apprehended and taken to the Corrections Centre by notice of appeal dated 17^th November, 2023 received by the High Court Registry on 1^st December, 2023 the applicant forwarded his application for leave to appeal out of time against his conviction and sentence in respect of file no. 383/17 only.
10. After the applicant’s legal aid assistance was approved, the legal aid counsel filed amended grounds of appeal against conviction and sentence.
    
11. The applicant’s counsel also filed her written submissions and the matter was for hearing on 23^rd May, 2023. On this day it was revealed that this court had not granted the applicant leave to appeal out of time in respect of his appeal filed in CF. 383/17. Furthermore, the other hurdle for the applicant was that there was no application for leave to appeal out of time before this court in respect of CF. 382/17 for the offence of obtaining financial advantage by deception.
    
12. The applicant’s counsel sought time to file a formal application for leave to appeal out of time which has now been done.
    
13. The brief summary of facts in CF 383/17 was as follows:
    

In May, 2017 the victim had given his DVD deck valued at $250.00 to the applicant to repair. When the victim went to inquire about his DVD deck he was told by the applicant that he had sold the item to someone. The victim did not give the applicant the permission to sell his deck to anyone.

The matter was reported to the police the applicant was arrested, caution interviewed and charged. The applicant in his caution interview admitted that he had received the DVD deck for repairs and that he had given it to his family in Suva.

14. The brief summary of facts in CF 382/17 was as follows:

On 30^th June, 2017 the victim had engaged the accused to repair his generator. The accused dismantled the generator and removed a small part and said that he will have to go to Suva to get the part for which the victim gave the accused $150. After receiving the money the accused did not go back to repair the generator. The victim reported the matter to the police the accused was arrested, caution interviewed and charged.

15. Both counsel filed written submissions and also made oral submissions during the hearing for which this court is grateful.
    

LAW

16. Section 248 (2) of the Criminal Procedure Act gives this court powers to enlarge the time within which an applicant can file an appeal. Section 248 (2) states:
    

“... the High Court may, at any time, for good cause, enlarge the period of limitation prescribed by this section.”

17. The Supreme Court in Kamlesh Kumar vs. The State, Criminal Appeal No. CAV 0001 of 2009 mentioned the following five factors by way of a principled approach which the Appellate Court’s examine in respect of an application for the grant of an extension of time to appeal. These factors were:
    

i) The reason for the failure to file within time;

ii) The length of the delay;

3. Whether there is a ground of merit justifying the Appellate Court’s consideration;
   
4. 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?

DETERMINATION

REASONS FOR THE FAILURE TO FILE APPEAL WITHIN TIME

18. The applicant in his affidavit sworn on 17^th July, 2024 states that he was not informed by his legal aid counsel about his imprisonment term. He only came to know about his sentence when he was apprehended and taken to the Corrections Centre. The applicant with the help of the prisoners was able to send his grounds of appeal which was only in respect of CF. 383/17 since he was not aware about the sentence in the other file.
    
19. The reason given by the applicant for the delay is not a satisfactory reason it was his case and he should have inquired with his counsel about the status of his matter.
    

LENGTH OF DELAY

20. According to the applicant he is out of time in CF. 382/2017 by about 20 months and 10 days and in CF. 383/2017 by about 12 months and 23 days.
    
21. The length of delay is substantial and inordinate which is inexcusable.

WHETHER THERE IS A MERITORIOUS GROUND JUSTIFYING THE APPELLATE COURT’S CONSIDERATION

22. The applicant submits that he has a meritorious appeal upon the following proposed amended grounds of appeal:

PROPOSED GROUNDS OF APPEAL AGAINST CONVICTION AND SENTENCE

CF. 382/2017

Appeal against Conviction

1. That the learned Trial Magistrate erred in law by granting the prosecution’s application for trial in absentia and thereafter proceeding with in trial in absentia when he was unfit to give evidence as per the Doctor’s recommendations.
   
2. That the learned Trial Magistrate erred in law and fact when she made a finding that the identity of the accused has been proved beyond reasonable doubt when in fact the identity of the accused was not properly established by the prosecution witnesses.
   

Appeal against Sentence

1. The learned Magistrate erred in law by failing to consider suspending the sentence when the accused was a first offender and the amount involved as only $150.00.
   
2. The sentence passed by the learned Magistrate is manifestly harsh and excessive when the amount involved was only $150.00.
   

CF 383/2017

Appeal against Conviction

(i) THAT the learned Trial Magistrate erred in law by granting the Prosecution’s application for trial in absentia and thereafter proceeding with in trial in absentia when he was unfit to give evidence as per the Doctor’s recommendations.

(ii) THAT the learned Trial Magistrate erred in law and fact when she made a finding that the identity of the Accused has been proved beyond reasonable doubt when in fact the identity of the Accused was not properly established by the Prosecution witnesses.

(iii) THAT the learned Trial Magistrate erred in law and fact when she failed to analyse that the DVD deck was not working was given by the complainant to the Accused for repairing.

(iv) THAT the learned Trial Magistrate erred in law and fact when she failed to consider Accused defence recorded in the Caution Interview Question and Answer 19, 20, 21, 22, 23, 24, 25 that the DVD deck was not sold and accused had informed the complainant to pick the DVD deck from him and pay his charges of $55.00.

Appeal against Sentence

(i) The learned Magistrate erred in law by considering the wrong tariff/starting point when determining the Appellant’s sentence.

ii) The learned Magistrate erred in law by failing to consider suspending the sentence when the Accused was a first offender and the value of the DVD deck was $250.00.

3. The sentence passed by the learned Magistrate is manifestly harsh and excessive when the value of the DVD deck was $250.00.
   

PREJUDICE TO THE RESPONDENT

23. There is no evidence that the Respondent will be prejudiced if the applicant is given leave to appeal out of time.
    

APPEAL AGAINST CONVICTION

Ground One

The learned Trial Magistrate erred in law by granting the Prosecution’s application for trial in absentia and thereafter proceeding with the trial in absentia when he was unfit to give evidence as per the Doctor’s recommendations.

24. This ground of appeal is a common ground for both files hence it will be dealt with together. The applicant’s counsel submitted that the applicant had a medical reason for not coming to court on the day of the hearing. The documents produced in court satisfied the requirement of good cause under section 170 (2) of the Criminal Procedure Act. To substantiate his absence the applicant by his counsel had provided to court his medical certificate and hospital summary discharge as well as a duly completed Form 62.
    
25. Counsel further stated that the non-appearance of the applicant was beyond his control since he was discharged from the Korovou Hospital on the day of the trial.
26. 26. Section 14 (2) (h) of the Constitution of the Republic of Fiji states:
    

“Every person charged with an offence has the right to be present when being tried, unless-

1. the court is satisfied that the person has been served with a summons or similar process requiring his or her attendance at the trial, and has chosen not to attend; or
   
2. the conduct of the person is such that the continuation of the proceedings in his or her presence is impractical and the court has ordered him or her to be removed and the trial to proceed in his or her absence”
   

27. Before an application for a trial in absentia is granted the court must be satisfied of the following:
    1. The accused had notice of the proceedings;
    2. The accused deliberately chose not to attend trial; and
    100. A fair trial can be held in the absence of the accused.
         
28. A perusal of the copy record shows that the applicant had notice of the hearing date since he was present in court on 12^th April, 2022 when the hearing date was assigned. Limb (a) was satisfied.
    
29. In respect of limb (b) the learned Magistrate took into account the fact that the applicant on previous two occasions on the day of the hearing had produced a Form 62 citing medical reasons for not attending court. The learned Magistrate after hearing the prosecution and the defence counsel and upon perusing documents handed over came to the conclusion that the applicant was deliberately delaying the hearing of the matter and therefore his reason for not attending court was not genuine hence the trial proceeded in the absence of the applicant.
    
30. In respect of limb (c) a perusal of the judgment delivered shows that the learned Magistrate was mindful of the applicant’s absence and also the fact that the absence of the applicant did not mean he was guilty. The applicant’s counsel was present throughout the trial but did not cross examine any of the prosecution witnesses. Upon perusal of the evidence adduced in my considered judgment the trial in absentia was fairly conducted.
    
31. The applicant’s counsel when questioned by the court to show whether there was any unfairness caused to the applicant during the trial in absentia was unable to do so. However, counsel stated that the accused was not able to give evidence and explain his version of events.
    
32. In this regard I reiterate the observations made by this court in Lekima Rokolisoa vs. The State HAA 024 of 2017 (28 July, 2017 at paragraphs 15, 16 and 17 about trial in absentia:

[15] ...When conducting trial in absentia the court must exercise caution reason being such a trial will have to be fair to the absent accused as the circumstances permit resulting in a just outcome. The rights of the absent accused had to be safeguarded so that the principles of fair trial are not compromised.

[16] The trial court should remind itself not to hold the absence of the accused against him or her and it is incumbent upon the prosecution to disclose and present evidence of all relevant facts that would be favourable to the accused. The above safeguards are, however, not exhaustive (see Fiji Independent Commission against Corruption vs. Fiona Tukana Nemani, Criminal Case no. HAC 37(A) of 2010). Furthermore trial in absentia not only includes substantive trial but trial within trial (see Krishneel Deepak Kumar vs. State, Criminal Misc. Case No. HAA 03 of 2016 (2 May, 2016).

[17] The House of Lords in R v Jones (2002) UKHL 5 stated that it is an overriding duty of the judge to ensure that the trial if conducted in the absence of the defendant will be as fair as circumstances permit and lead to a just outcome.

33. There is some merit in respect of limb (b) that is whether the applicant had deliberately absented himself from the trial. The applicant through his counsel on the day of the trial provided the relevant documents from a medical practitioner which clearly mentioned that the applicant was unfit to attend court. I accept that the applicant on previous two occasions was absent on the day of the hearing, however, that was not a factor for consideration by the learned Magistrate when the applicant had through his counsel produced a medical certificate and Form 62 which is a legally authorized form completed by the examining medical practitioner.
34. The learned Magistrate ought to have made inquiries or could have summoned the doctor to court if she had any doubts about the authenticity of the medical reports or the findings of the doctor. It is unfortunate that the learned Magistrate had come to the conclusion that the applicant’s reason for not coming to court was not genuine. Furthermore, the applicant was admitted at the Korovou Hospital who was discharged on the day of the trial.
35. The learned Magistrate ought to have also considered the distance of travel by the applicant from Korovou to reach Ba. The doctor had specifically mentioned in Form 62 that the applicant was unfit to attend court or participate in the proceedings for 5 days from 16^th September, 2022. Although it was a 2017 matter there was a genuine reason given by the applicant why he could not be in court. The previous attitude of the applicant in providing his medical certificates before or on the day of the hearing should not have been taken against the applicant in this current situation. I can understand the ire of the learned Magistrate but the court was bound by the evidence handed over by the defence counsel.
36. Although the above ground of appeal has merits a perusal of the evidence in the copy record does not show any substantial miscarriage of justice caused to the applicant during the trial in absentia. It is therefore important for this court to examine the above as well.
    

SUBSTANTIAL MISCARRIAGE OF JUSTICE

37. The test whether a substantial miscarriage of justice has occurred is that the appellate court had to be satisfied on the evidence adduced and the application of law that the only conclusion reached would have been one of guilt.
    
38. I have once again reviewed the evidence adduced to assure myself whether the judgment in its current form had served justice bearing in mind the applicable law.
    
39. The Court of Appeal in Munendra vs. The State, criminal appeal no. AAU 0023 of 2018, 25 May, 2023 from paragraphs 40 to 42 stated the above in the following words:
    

[40] The test as propounded on the proviso to section 4(1) of the Criminal Appeal Act, 1907 in UK which is identical with the proviso to section 23(1) of the Court of Appeal Act in Fiji, is that the appellate court may apply the proviso and dismiss the appeal if it is satisfied that on the whole of the facts and with a correct direction the only proper verdict would have been one of guilty [see R. v. Haddy [1944] K. B. 442; 29 Cr. App. R. 182; Stirland v D. P. P. [1944] A.C. 315; 30 Cr. App. R. 40; R. v. Farid 30 Cr. App. R 168)].

[41] The proviso to section 23(1) of the Court of Appeal Act is almost identical with section 256 (2) (f) of the Criminal Procedure Act and therefore, the same test applied to the proviso to section 23 (1) should apply to proviso in section 256 (2) (f) of the Criminal Procedure Act.

[42] The Court of Appeal in Aziz v State [2015] FJCA 91; AAU112.2011 (13 July 2015) adopted the same test in the application of the proviso to section 23(1) of the Court of Appeal Act as follows:

‘[55] ...........if the Court of Appeal is satisfied that on the whole of the facts and with a correct direction the only reasonable and proper verdict would be one of guilty there is no substantial miscarriage of justice. This decision was based on section 4(1) of the Criminal Appeal Act 1907 (UK) which was in the same terms as section 23(1) of the Court of Appeal Act.

[56] This test has been adopted and applied by the Court of Appeal in Fiji in R –v- Ramswani Pillai (unreported criminal appeal No. 11 of 1952; 25 August 1952); R –v- Labalaba (1946 – 1955) 4 FLR 28 and Pillay –v- R (1981) 27 FLR 202. In Pillay –v- R (supra) the Court considered the meaning of the expression "no substantial miscarriage of justice" and adopted the observations of North J in R –v- Weir [1955] NZLR 711 at page 713:

"The meaning to be attributed to the words 'no substantial miscarriage of justice has occurred' is not in doubt. If the Court comes to the conclusion that, on the whole of the facts, a reasonable jury, after being properly directed, would without doubt have convicted, then no substantial miscarriage of justice within the meaning of the proviso has occurred."

[57] ....................when considering whether to apply the proviso the appeal may be dismissed if the Court considers that there was no substantial miscarriage of justice.

In Vuki –v- The State (unreported AAU 65 of 2005; 9 April 2009) this Court observed at paragraph 29:

"The application of the proviso to section 23(1) _ _ _ of necessity, must be a very fact and circumstance – specific exercise."

40. I have perused the evidence in respect of both files and I am satisfied that upon the analysis of the evidence by the learned Magistrate the only verdict is the guilt of the applicant. There is no evidence of any unfairness caused to the applicant, the learned Magistrate was also alert to the fact that no adverse inference can be drawn from the fact that the applicant was not present in court. The evidence given by the victims were admissible and relevant to the charges and therefore no criticism can be made of the trial process and the final decision reached. The applicant was represented by counsel who did not raise any objections during the trial. In accordance with section 256 (2) (f) of the Criminal Procedure Act this ground of appeal against conviction is dismissed since no substantial miscarriage of justice has actually occurred.

GROUND TWO

The learned Trial Magistrate erred in law and fact when she made a finding that the identity of the Accused has been proved beyond reasonable doubt when in fact the identity of the Accused was not properly established by the prosecution witnesses.

41. This is another common ground of appeal which will be dealt together for the two files. Counsel submitted that both the victims had not properly identified the applicant. It was not correct of the learned Magistrate to rely on the evidence of the interviewing officers to identify the applicant in both files.
42. The above submission is misconceived in both files identification was not an issue. The applicant was represented by counsel and no objection was taken when the interviewing officers were giving evidence. Furthermore, during his caution interview the applicant stated the following:

CF 382 of 2017

Q.13. On 30/6/2017 did you went to Jayant Patel’s house?

Ans. Yes.

CF 383 of 2017

Q.14. Do you know any Mohamed Samil?

Ans. I know him.

Q.15 How do you know him?

Ans. He was our neighbour at Votua. Ba when I was staying there.

43. Although not in the ground of appeal the applicant’s counsel also stated that the learned Magistrate relied on the caution interview of the applicant in both files which contained confessions without conducting a voir dire. A perusal of the copy record shows that at no time had the applicant through his counsel informed the court that he will be challenging his confessions in the caution interview. It is the responsibility of the defence to inform the court when confessions are to be challenged and the grounds in support are filed and served so that a voir dire hearing can be conducted by the court. Here nothing as such was put to the court either by the applicant or his counsel. The defence counsel did not even cross examine the interviewing officers.

CF 383/2017

GROUND THREE

The learned Trial Magistrate erred in law and fact when she failed to analyse that the DVD deck was not working was given by the complainant to the accused for repairing.

44. Counsel submitted that there was no deceptive conduct on the part of the applicant he had repaired the item as asked by the complainant and he was waiting for his payment and he would have released the item. When the complainant gave evidence the defence counsel did not put the defence case to the complainant. In his caution interview (Q. and A.17) the applicant admits that he has given the DVD deck of the victim to his family in Suva. The fact that the DVD deck was not working was immaterial to the charge. This ground of appeal is dismissed as frivolous.

GROUND FOUR

The learned Trial Magistrate erred in law and fact when she failed to consider Accused defence in the caution interview questions and answers 19, 20, 21, 22, 23, 24 and 25 that the DVD deck was not sold and accused had informed the complainant to pick the DVD deck from him and pay his charges of $55.00.

45. Counsel submitted that the learned Magistrate had incorrectly relied on the confessions obtained by the police during the caution interview of the applicant without a voir dire hearing. I have already addressed this ground of appeal at paragraph 43 above. The learned Magistrate did not give any weight to the explanation or defence in the caution interview of the accused after the defence case was not put to the prosecution witnesses by the defence counsel.
46. All the grounds of appeal against conviction are dismissed due to lack of merits.

APPEAL AGAINST SENTENCE

CF 382/2017

GROUND FIVE

The learned Magistrate erred in law by failing to consider suspending the sentence when the Accused was a first offender and the amount involved was only $150.00.

GROUND SIX

The sentence passed by the learned Magistrate is manifestly harsh and excessive when the amount involved was only $150.00.

CF 383/2017

GROUND SEVEN

The learned Magistrate erred in law by considering the wrong tariff/starting point when determining the Appellant’s sentence.

GROUND EIGHT

The learned Magistrate erred in law by failing to consider suspending the sentence when the Accused was a first offender and the value of the deck was $250.00.

GROUND NINE

The sentence passed by the learned Magistrate is manifestly harsh and excessive when the value of the DVD deck was $250.00.

47. All the grounds of appeal against sentence can be dealt with together. Counsel argued that the final sentence of 3 years with a non-parole period of 2 years and 2 months was harsh and excessive considering the fact that the value of the items involved were of minimum value and the applicant was a first offender. Although the sentence was within the tariff a non-custodial sentence was warranted. The applicant is an elderly person and he has already served 13 months of his sentence.

LAW

48. In sentencing an offender the sentencing court exercises a judicial discretion. An appellant who challenges this discretion must demonstrate to the appellate court that the sentencing court fell in error whilst exercising its sentence discretion.
    
49. The Supreme Court of Fiji in Simeli Bili Naisua vs. The State, Criminal Appeal No. CAV0010 of 2013 (20 November 2013) stated the grounds for appeal against sentence at paragraph 19 as:-
    

“It is clear that the Court of Appeal will approach an appeal against sentence using the principles set out in House v The King [1936] HCA 40; (1936) 55 CLR 499 and adopted in Kim Nam Bae v The State Criminal Appeal No. AAU0015 at [2]. Appellate Courts will interfere with a sentence if it is demonstrated that the trial judge made one of the following errors:-

(i) Acted upon a wrong principle;

(ii) Allowed extraneous or irrelevant matters to guide or affect him;

(iii) Mistook the facts;

(iv) Failed to take into account some relevant consideration.”

50. The maximum penalty for the offences of deception is 10 years imprisonment and the accepted tariff is a sentence between 2 years to 5 years imprisonment (see State vs. John Cunningham Miller [2014] FJHC 16, (31 January, 2014 and State vs. Atil Sharma [2010] FJHC 623, HAC 122 of 2010 (7 October, 2010).
    
51. At paragraph 10 of the sentence the learned Magistrate stated the following:
    

For your sentence, I pick 3 years as my starting point in light of the prevalence of this offending. I add 6 months for the aggravating factor and that increases your sentence to 3 years and 6 months imprisonment. I reduce 6 months for your mitigation and that reduces your sentence to 3 years imprisonment.

52. Considering the circumstances of the offending and the culpability of the applicant the starting point taken by the learned Magistrate on the objective seriousness of the offending was on a higher tariff range. The learned Magistrate erred in principle by including an aggravating factor of prevalence of the offending in the starting point. This resulted in a starting point of 3 years. To this another aggravating factor was added which resulted in double counting of aggravating factors.
    
53. In view of the above, the appeal against sentence is allowed and in accordance with section 256 (3) of the Criminal Procedure Act and in the interest of justice the sentence of the Magistrate’s Court is set aside. The two offences for which the applicant has been found guilty and convicted are founded on similar facts hence an aggregate sentence will be imposed for the two offences. The starting point of the aggregate sentence is 2 years imprisonment. The sentence is increased by 6 months for aggravating factors the interim sentence is now 2 years and 6 months imprisonment, the sentence is reduced for mitigation by 6 months. The final aggregate sentence is 2 years imprisonment for the two offences.
    
54. Under section 26 (2) (a) of the Sentencing and Penalties Act this court has a discretion to suspend the final sentence since it does not exceed 3 years imprisonment.
    
55. Since the applicant was sentenced in absentia an order was issued that the sentence will begin from the date the applicant was to be arrested. To assist the court an inquiry was sent by the High Court registry to the Corrections Centre to ascertain the date the applicant was apprehended. According to the Corrections Centre the applicant was taken into custody on 25^th October, 2023. This means the accused has already served a little over 10 months which in my considered judgment is a justified punishment for his conduct. In addition to this, the applicant is a first offender and the items involved were of a minimum value. In view of the above, a suspension of the entire term of imprisonment meets the ends of justice. Therefore, the aggregate sentence of 2 years imprisonment is suspended for three years with effect from 25^th October, 2023. The effect of the suspended sentence is explained to the applicant.
    

ORDERS

1. Leave to appeal out of time against conviction is dismissed due to lack of merits;
2. Leave to appeal out of time against sentence is granted;
3. The appeal against sentence is allowed;
4. An aggregate sentence of 2 years imprisonment is imposed on the applicant in CF. 382 and 383 of 2017 with effect from 25^th October, 2023 which is suspended for three years;
5. The applicant is to be immediately released from the Corrections Centre;
   
6. 30 days to appeal to the Court of Appeal.
   

Sunil Sharma
Judge

At Lautoka
30 August, 2024

Solicitors
Office of the Legal Aid Commission for the Applicant.
Office of the Director of Public Prosecutions for the Respondent.