Vunibobo v State [2012] FJCA 78; AAU0030.2011 (2 November 2012)

IN THE COURT OF APPEAL, FIJI.
ON APPEAL FROM HIGH COURT OF FIJI.

CRIMINAL APPEAL NO. AAU 0030 OF 2011
[High Court Criminal Case No. HAC 024 of
2008, Lautoka]

BETWEEN:

NAISA VUNIBOBO
Appellant

AND

THE STATE
Respondent

Counsels : Appellant in Person
Mr. M. Korovou for Respondent
Hearing : 12th October, 2012
Ruling : 2nd November, 2012

RULING ON APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

1. On 15th February, 2011, the first day of trial in the Lautoka High Court, the appellant pleaded guilty to "unlawful possession of 3,370 grams of cannabis sativa, on 27th March 2007, at Navosa in the Western Division", contrary to section 5(a) of the Illicit Drugs Control Act 2004. The summary of facts were read to him. He admitted the same. The court found him guilty as charged, and convicted him accordingly.
   
2. The court noted that he had two previous convictions of "assault occasioning actual bodily harm" in 2006 and "unlawful possession of illicit drugs" in 2009. The appellant admitted these convictions. The court then took the appellant's plea in mitigation. On 17th February, 2011, the court sentenced the appellant to 7 years imprisonment, after taking into account the aggravating and mitigating factors. He was given a 5 years non-parole period.
   
3. On 29th March, 2011, the appellant filed a letter in court, appealing his sentence. He was 10 days out of time. However, in the interest of justice, I grant the appellant an extra 10 days to lodge his sentence appeal, thus making his present application technically being lodged in time. On 7th March, 2012, the appellant filed his application to amend his grounds of sentence appeal. He filed 7 grounds. On a closer look, it was really two grounds, that is, his 7 years prison sentence was harsh and excessive, and disparity of sentence with his co-accused, who received 2 ½ years imprisonment, for the same offence.
   
4. On an appellant's right to appeal his sentence in a criminal case, section 21 (1)(c) of the Court of Appeal Act, chapter 12 reads as follows:
   

"...21(1) A person convicted on a trial held before the High Court may appeal under this Part to the Court of Appeal –

(a)...

(b)...

(c) with the leave of the Court of Appeal against the sentence passed on his conviction unless the sentence is one fixed by law..."

5. On the powers of a single judge of appeal in presiding over this matter, section 35(1)(a), (b) and 35(2) of the Court of Appeal Act, reads as follows:
   

"...35(1) A judge of the Court may exercise the following powers of the Court –

1. to give leave to appeal to the Court;
2. to extend the time within which notice of appeal or of an application for leave to appeal may be given...
   

35(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..."

6. On the first ground of his sentence appeal, the appellant complained that the 7 years prison sentence imposed on him was harsh and excessive. The Respondent referred the court to the majority decision in Kini Sulua & Michael Ashley Chandra vs The State, Criminal Appeal No. AAU 0093 and AAU 0074 of 2008, Court of Appeal, Fiji. In that case, sentencing on unlawful possession of cannabis sativa were split up into four categories. Category No. 1 involved 0 to 100 grams of cannabis sativa, and non-custodical sentences were encouraged. Category No. 2 involved 100 to 1,000 grams of cannabis sativa, and the tariff was set between 1 to 3 years imprisonment. Category No. 3 involved 1,000 to 4,000 grams of cannabis sativa, and the tariff was set between 3 to 7 years imprisonment. Category No. 4 involved possessing over 4,000 grams of cannabis sativa, and the tariff was set between 7 to 14 years imprisonment.
   
7. The respondent submitted that, the appellant's 7 years prison sentence falls within Category No. 3 mentioned above. He was found in possession of 3,370 grams of cannabis sativa. This was more than 2,500 grams, and according to Kini Sulua & Michael Ashley Chandra v The State (supra), a sentence of more than 4 years was justified. The court started with 7 years imprisonment. It added 1 year for the aggravating factors, taking it to 8 years. It then deducted 1 year for the mitigating factors, bringing the sentence down to 7 years imprisonment. It then fixed a non-parole period of 5 years. I agree with the Respondent, that the sentence was not harsh and excessive.
   
8. On the second ground of appeal on sentence, that is, parity of sentence, the appellant complained that while he received a sentence of 7 years imprisonment, his co-accused (his former wife) received 2 ½ years imprisonment, for the same offence. He said, this was unfair and he should have been given a similar sentence. In Raymond Sikeli Singh and Others vs The State, Criminal Appeal No. AAU 0008 of 2000, the Fiji Court of Appeal said the following:
   

"...Each of the appellants contended that other persons who had committed offences similar to those with which they were charged had received lighter penalties. As far as it is possible to do so in a just society people should be treated in a similar way in similar circumstances. The difficulty comes in making an adequate comparison sufficient to determine what are similar circumstances. In every case the weight which will be given to particular factors must differ and inevitably it will often be extremely difficult to determine what weight was given in individual cases to individual factors. To that extend comparisons can never be mathematical and never exact. Even persons involved in the same offence may need to be dealt with in different ways (as occurred in this case) because their participation is different or because different considerations apply to them. That will for example be the case where one offender is very young and others are not..."

9. According to the court record, this case was first called on 16th May, 2008. On 13th May, 2010, the appellant's former wife and co-accused pleaded guilty to the offence, that is, approximately 2 years after first call. The appellant, on the other hand, on the first day of the trial, on 15th February, 2011, pleaded guilty to the offence, that is, approximately 2 years 9 months after first call. The difference between the two was that, the appellant waited until all the State witnesses were called, before he pleaded guilty. The appellant, by his own actions, wasted taxpayers' resources and all the witnesses' time and energy. He cannot claim the benefit accorded to the co-accused, for pleading guilty earlier. She did not waste taxpayers' resources and state witnesses' time and energy, like the appellant.
   
10. Furthermore, in advancing her plea in mitigation, the appellant's co-accused relied on Mr. T. Terere, from the Legal Aid Commission, as her duty counsel. The appellant relied on no-one, but himself. Consequently, Mr. Terere was able to properly put forward the co-accused's plea in mitigation, as opposed to the appellant. His co-accused asked for leniency because she had pleaded guilty, a first offender and that she was remorseful. She also asked the court to take into account that the appellant was always abusive towards her, and that he coerced her to committing the crime. In other words, she was telling the court that she was not the prime mover in the offending, it was the appellant. Finally, she told the court that she suffers from depression because of the appellant's repeated abuse of her. Compared to his co-accused, the appellant did not make an effective plea in mitigation. A lot of litigants tend to underestimate the effect of a properly put plea in mitigation, at their own peril. The court took on board what the co-accused pleaded, and responded accordingly with 2 ½ years imprisonment. The appellant did not make a strong plea in mitigation, and he got 7 years imprisonment. In my view, taking on board what the Fiji Court of Appeal said in Raymond Sikeli Singh & Others vs The State (supra), there was no disparity of sentence. The High Court took into account all the relevant factors before imposing the sentences on the appellant, and his co-accused.
    
11. Given the above, I find that the grounds submitted by the appellant in seeking leave to appeal his sentence, were not sufficiently strong to grant him leave to appeal his sentence. It was not shown that the 7 years imprisonment imposed on him was wrong in law. He has no right to seek leave to appeal, and pursuant to section 35(2) of the Court of Appeal Act, chapter 12, I dismiss his application for leave to appeal his sentence. I order so accordingly.
    

Salesi Temo
Justice of Appeal

Solicitor for Appellant : In Person
Solicitor for Respondent : Office of the Director of Public Prosecution, Suva.