Singh v State [1999] FJCA 9; Aau0028e.98s (11 February 1999)

Fiji Islands - Parmit Singh v The State - Pacific Law Materials

IN THE COURT OF APPEAL, FIJI

ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL NO. AAU0028 OF 1998S
(High Court Criminal Case No. HAA0015 of 1997)

BETWEEN:

:

PARMIT SINGH
Applicant

AND:

THE STATE
Respondent

Date of Decision: Thursday, 11 February 1999

DECISION IN CHAMBERS

In February 1996applicant was convicted in d in the Nadi Magistrates’ Court of three offences of obtaining money by false pretences contrary to section 309(a) of the Penal Code (Cap. 17). He pleaded guilty to all three offences which involved a total of $15,500 obtained by falsely pretending that he was an Immigration officer at the New Zealand Embassy and could arrange visas to reside in New Zealand. He admitted 57 previous convictions between 1977 and 1992, all but four for offences of dishonesty. He was sentenced to 2 years and 9 months’ imprisonment for each, the sentences to be served consecutively. So the total effective sentence was one of eight years and three months’ imprisonment.

He appealed against that sentence forthwith to the High Court. On 23 May 1997 Lyons J. allowed his appeal to the extent of ordering that the sentences for the first two offences were to run consecutively with one another but concurrently with the sentence for the third offence. That reduced the effective total sentence to five years and six months’ imprisonment.

The applicant is now seeking leave to appeal to this Court out of time. He has expressed his appeal as being against the sentence of 8 years and 3 months’ imprisonment imposed by the magistrate. His right to appeal against that sentence was exhausted when Lyons J. gave his judgment in respect of the appeal to the High Court. However, as the applicant has made his application for leave by a letter written by himself and not through a barrister and solicitor, I am treating his application as being for leave to appeal against Lyons J.’s decision.

Section 22 of the Court of Appeal Act (Cap. 12) governs appeals from the High Court in its appellate jurisdiction to this Court. Sub-section (1) provides:

"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".

Sub-section (1A), added to the Act by the Court of Appeal (Amendment) (No. 2) Act 1998, provides:

"(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".

Although for the purpose of Part X of the Criminal Procedure Code (Cap 21) (which governs appeals to the High Court from Magistrates’ Courts) the extent of a sentence is to be deemed to be a matter of law (Section 308(4)), it is not otherwise such a matter unless the extent is greater than the maximum sentence which could lawfully have been imposed. The sentence imposed by Lyons J. was well within the maximum sentence that the magistrate could lawfully have imposed, five years imprisonment for each offence (Penal Code s.309) and a total combined sentence of ten years’ imprisonment (Criminal Procedure Code, sections 7 and 11). It was not an unlawful sentence or passed in error of law; nor was it imposed in substitution for a non-custodial sentence.

Consequently, this Court cannot entertain an appeal against Lyons J.’s judgment. If the applicant had filed a notice of appeal within the time allowed for commencing an appeal in this Court, the appeal would have been liable to be dismissed without hearing on the ground that it was bound to fail because there was no right of appeal. Leave to appeal cannot properly be given in a case where the appeal is bound to fail because there is no right of appeal. That is the situation here.

Accordingly, the application must be rejected and leave to appeal refused. Section 35 of the Court of Appeal Act authorises a single judge to do that.

Order: Leave to appeal refused.

Mr Justice I. R. Thompson
Justice of Appeal

AAU0028E.98S