Lagakali v State [1999] FJCA 75; AAU0043E.99S (17 August 1999)

IN THE COURT OF APPEAL, FIJI AT SUVA
ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL NO. AAU0043 OF 199S
(High Court Criminal Appeal No. 43 of 1999)

BETWEEN:

FILIPE LAGAKALI
Appellant

AND:

THE STATE
Respondent

DIRECTION

The appellant pleaded guilty in the Magistrate’s Court to one offence of robbery with violence. He was sentenced to 4 years’ imprisonment. The magistrate also made an order under section 30 of the Penal Code (Cap. 17) activating a suspended sentence of imprisonment but reducing it from 12 months to 4 months. The appellant appealed to the High Court by a letter attached to a petition of appeal. His letter concerned the sentence imposed for the offence of robbery with violence. It did not refer to the order activating the suspended sentence.

In the High Court the learned judge dismissed the appeal against sentence but increased the period of the suspended sentence to what it was originally, 12 months. The respondent had not appealed against the magistrate’s order reducing it to 4 months. It is, I believe, arguable that, in the absence of appeal by either party against the order under section 30 (as distinct from the sentence imposed at the trial in the Magistrates’ Court), the High Court did not have power to interfere with it in any way.

The appeal to this Court, like that to the High Court, is in the form of a letter annexed to a petition of appeal. Again it relates only to the sentence. The sentence was within the magistrate’s jurisdiction to impose and so was not an unlawful one. The appellant has not stated any facts which might provide a basis for finding that it was passed in consequence of an error of law. Consequently there is no right of appeal to this Court against the sentence (see section 22 (1A) Court of Appeal Act (Cap. 12)). The appeal could, therefore, be dismissed pursuant to section 35(2) of that Act.

However, the appellant is unrepresented and should, I consider, be given an opportunity on the hearing of the appeal to amend his petition, if he thinks fit, so that the appeal is against the order altering the magistrate’s order in respect of the suspended sentence I direct that it is to be set down for hearing on that basis.

A copy of this direction is to be sent forthwith to the appellant and the Director of Public Prosecutions by the Registrar.

Mr. Justice I.R. Thompson
Justice of Appeal

17 August 1999