Calevu v State [1999] FJCA 4; Aau0022d.98 (19 January 1999)

Fiji Islands - Calevu v The State - Pacific Law Materials

IN THE COURT OF APPEAL, FIJI

AT SUVA

CRIMINAL APPEAL NO. AAU0022 OF 1998
(Suva Magistrates' Court Case No. 2092/96)
(High Court Criminal Appeal No. HAA33 of 1998)

IGN=CENTER>BETWEEN:

:

JONE CALEVU
Appellant

AND:

STATE
Respondent

Dismissal of a 2nd appeal against sentence by a single
judge under Section 35(2) of the Court of Appeal
[as amended by Section 10 of the Court
of Appeal (AmendAmendment) Act 1998]

On the 2 December 1996 the Appellant was convicted at Suva Magistrates' Court on his own plea on count 1 of robbery with violence contrary to Section 293(1)(a) of the Penal Code and on count 2 of unlawful use of motor vehicle contrary to Section 292 of the Penal Code. He was sentenced on count 1 to four years imprisonment and on count 2 to six months imprisonment. Both the sentences were ordered to be served concurrently but consecutive to the sentence he was serving.

He appealed to the High Court against the sentence as being harsh and excessive.

On 28 August 1998 his appeal against sentence was dismissed by Sadal J.

He lodged an appeal in the Court of Appeal on 18 September 1998 against severity of sentence imposed by the Magistrates' Court.

His letter of appeal reads as follows:-

"I Jone Calevu your humble prisoner wishes and desire to appeal against the sentences meted against me by Suva Magistrate Court, finally my appeal was dismissed on the 28th of August, 1998 by Suva High Court in questionable. However the prevalent circumstances to the Court of Appeal is specifically on the basis and ethics of question of law. Below I seek to present some of the reasons for sentences appeal based on this ethics of question of law :-

1. The Magistrate has given a sentence which is very harsh, severe and excessive as he has said in his ruling "The act was not only daring but dangerous and involved with violence. It is fortunate that none of the victims were injured. If it was the case of violence the word fortunate is contradictory statement.

2. The Court of criminal appeal where on their discretion in ordering concurrent sentence for outstanding offences as in case of V-Carey and James 26 CR APP R133 where offences either than the one of which the prisoner have been convicted by him and he decide they should be taken into consideration if the offence is similar to the one for which the prisoner has been convicted whether these has been a committal for trial in another jurisdiction or not Ref: 1615 of page 188 Acihi Bold - 36th Edition.

3. That the Magistrate has errord in laws by giving severe harsh sentences and not considering the significant allowance on the plea of guilty.

4. That reference is made in respect of a case similar to mine - Solomoni Rokotovitovi with four(4) cases of Robbery with Violence Case no: 3497/94 and High Court after appeal only gave him 3½ years is a gervine example of the miscarriage of justice."

This is therefore a second appeal and it is governed by Section 22(1) and (1A) of the Court of Appeal Act (as amended by Section 4 of the Court of Appeal (Amendment) (No. 2) Act 1998 on 17 September 1998. It is to be noted that the amendment deletes '(not including severity of sentence)' from subsection (1) and adds a new subsection (1A).

Section 22(1) and 22(1A) as amended read as follows -

"22.-(1) Any party to an appeal from a magistrate's court to the High Court may appeal, under this Part, against the decision of the High Court in such appellate jurisdiction to the Court of Appeal on any ground of appeal which involves a question of law only:

Provided that no appeal shall lie against the confirmation by the High Court of verdict of acquittal by a magistrate's court.

(1A) No appeal under subsection (1) lies in respect of a sentence imposed by the High Court in its appellate jurisdiction unless the appeal is on the ground-

(a) that the sentence was an unlawful one or was passed in consequence of an error of law; or

(b) that the High Court imposed an immediate custodial sentence in substitution for a non-custodial sentence."

It is clear that the provisions of subsection (1A) do not apply to this case because the High Court did not impose any sentence on the Appellant, it merely dismissed his appeal. Therefore no question of an unlawful sentence, any error of law or of an immediate custodial sentence in lieu of non-custodial sentence on the part of the High Court arises in this case.

In the present circumstances the Appellant can only appeal against sentence on a question of law under subsection (1). In any case an unlawful sentence or one passed in error of law constitutes a question of law.

I am mindful that, where there has been any wrong decision of any question of law either on the part of Magistrates' Court or of the High Court, the Court of Appeal has power to rectify such a decision by virtue of authority vested in it under subsection (3) of Section 22.

This is so notwithstanding that Section 21(1) only provides for an appeal "against the decision of the High Court" on a question of law only.

If a sentence passed by a Magistrate's Court is within its jurisdiction an appeal against severity of sentence cannot per se give rise to a question of law only. But whether a Court in passing sentence acted within jurisdiction or not does raise a point of law. In Prem Chand & Anor v Reginam 22 FLR 100 the Fiji Court of Appeal held -

"---- if the sentence were beyond the powers of the Magistrate’s Court or the Supreme Court. ---- Such a sentence would be illegal and without jurisdiction; as such it would be a nullity and could impose no degree of severity at all, which would result in there being a question of law to be resolved on the second appeal" -----. (p.104)

The same Court stated as follows in David John Collard v Reginam 32 FLR 55 (Cr. App. No. 4 of 1986):

"---- Of course a sentence passed in excess of jurisdiction gives rise to a point of law". (p.62)

Since the Appellant is a lay person I thought it fair to look into the question of jurisdiction even though it has not been raised.

The maximum sentence for the offence of robbery on count one under Section 293(1)(a) is imprisonment for life. But a Resident Magistrate is restricted to a maximum sentence of 5 years for one count (see Sections 7 and 11 of the Criminal Procedure Code). The 4-year sentence passed by the Resident Magistrate on the 1st count was therefore well within his jurisdiction. So was the sentence on the 2nd count where the maximum is 6 months' imprisonment with or without fine. The Order making the two sentences run concurrently was also within the Magistrate's competence (see Section 12 of the Criminal Procedure Code); in fact it was in favour of the Appellant. No error of law exists in this case either on the part of the High Court or in the Magistrates' Court and no question of law arises.

Section 35(2) of the Court of Appeal Act (as amended by Court of Appeal (Amendment) Act 1998 provides -

"35.-(1) --

(2) If on the filing of a notice of appeal or of an application for leave to appeal, a judge of the Court determines that the appeal is vexatious or frivolous or is bound to fail because there is no right of appeal or no right to seek leave to appeal, the judge may dismiss the appeal."

This Amendment came into force on 27 July 1998. (See Fiji Republic Gazette No. 42 dated Friday 10 July 1998.)

I have no hesitation in dismissing this appeal against severity of sentence as it is bound to fail because no question of law only has been raised or could be raised and therefore there is no right of appeal.

Dated at Suva this 19th day of January 1999.

Sir Moti Tikaram
President, Court of Appeal, Fiji

Aau0022d.98