Peterson v State [2014] FJCA 154; AAU110.2013 (19 September 2014)

IN THE COURT OF APPEAL
[On Appeal from the High Court]

Criminal Appeal No. AAU110 of 2013
[High Court Case No. HAC 018 of 2010]

BETWEEN:

FLORENCE LIMA PETERSON
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Mr. J. Savou for the Appellant
Mr. M. Korovou for the Respondent

Date of Hearing : 13 August 2014
Date of Ruling : 19 September 2014

RULING

[1] This is an application for an extension of time for leave to appeal against sentence pursuant to section 21(1)(c) of the Court of Appeal Act.

[2] The appellant was charged with one count of larceny by servant contrary to section 274(a)(1) of the Penal Code. The charge alleged a gross sum of $47,191.87. The allegation was that the appellant being an employee of Save The Children Fiji, systematically stole from her employer over a period of twelve months from 1 January 2006 to 31 December 2006. Following a trial in the High Court at Suva, the appellant was convicted of the charge and sentenced to 4 years' imprisonment with a non-parole period of 3 years. On 25 November 2013, the appellant filed an untimely appeal against her sentence.

[3] The right of appeal to this Court is governed by the Court of Appeal Act. Parliament has further enacted the Court of Appeal Rules to set out the procedures for appeals to this Court. Section 26(1) of the Court of Appeal Act has set a time limit of 30 days to appeal against a decision of the lower court. If an appeal is not filed within the statutory time limit, this Court has no jurisdiction to hear the appeal, unless the Court grants an extension of time to appeal. The Court's power to grant an extension of time to appeal can be exercised by a single judge under section 35(2) of the Court of Appeal Act. The discretion to grant an extension of time is exercised by the appellate court by considering the following matters:

(i) The reason for the failure to comply.
(ii) The length of the delay.
(iii) Is there a question which justifies serious consideration?
(iv) If there has been substantial delay, is there a ground that will probably succeed?
(v) The degree of prejudice to the respondent in enlarging time (Livai Nawalu v The State unreported Criminal Appeal No. CAV0012/2012 28 August 2013).

[4] The appellant has filed an affidavit in support to explain the delay. She has stated that she developed a medical condition when she was remanded in custody pending sentence on 19 February 2013. On 22 February 2013, the prison authorities took her to Suva Private Hospital. The appellant was diagnosed with bronchitis. She was put on oral antibiotics and returned to the prison. On 28 February 2013, the High Court sentenced the appellant to 4 years' imprisonment. On 11 April 2013, the appellant was taken to Tamavua Twomey Hospital for a follow up on her medical condition because she complained of deafness and imbalance. After a medical review, the appellant was returned to the prison.

[5] The appellant stated that it was not until 19 November 2013 when she learnt from a visiting justice that there was an avenue for late appeal.

[6] The reasons for the delay are not satisfactory. The appellant being an educated person must have realized the importance of filing a timely appeal. Her medical condition was not serious enough to act as an impediment for filing a timely appeal.

[7] In Nawalu, the Supreme Court observed at paragraph 8:

"For an incarcerated unrepresented Appellant up to 3 months might permit a court to consider granting leave if other factors are in the Appellant's favour."

[8] The length of the delay is eight months. This factor is not in favour of the appellant. As the Supreme Court has pointed out in Nawalu (where the appeal was 11 ½ months late) at paragraph 9:

"The delay in making the appeal here was very lengthy, and one not normally to be over overlooked. Finality is important in all litigation. There must be compelling grounds of appeal to allow an appeal as late as this to go forward."

[9] The real issue is whether there is any ground of appeal that will probably succeed. The grounds of appeal advanced by the appellant are:

(i) The Learned sentencing Judge failed to deduct the period which the Petitioner spent in remand;

(ii) The Learned sentencing Judge inadequately considered the proportionality principle by failing to consider alternative range of sentencing order available to the Court under section 15(1) of the Sentencing and Penalties Decree."

[10] The appellant was remanded in custody for sentencing on 19 February 2013. She was sentenced on 28 February 2013. The contention is that the trial judge failed to take her pre-sentence remand period into account. The pre-sentence remand period was nine days. It is clear from the sentencing remarks that the trial judge did not consider the pre-sentence remand period. However, the period of 9 days does not make any significant difference to the sentence of 4 years' imprisonment that was imposed on the appellant. This is not a compelling ground for an extension of time. However, since section 24 of the Sentencing and Penalties Decree states that any period of time during which the offender was held in custody shall be regarded as a period of imprisonment already served by the offender, there is nothing preventing the Department of Corrections to take the nine days pre-sentencing remand period into account when considering releasing the appellant on parole.

[11] The second ground of appeal is devoid of any merit. The facts of the case have been set out at paragraph 2 of the sentencing remarks of the learned High Court judge. The facts show the appellant employed a devious method to steal from her employer. Save the Children Fiji is a charitable organization that looks after the needs of impoverished children of Fiji. The appellant expressed no remorse for her conduct and the organization lost $47,191.87, which is considered a substantial amount by Fiji standards. The offending clearly called for special and general deterrence. The term of 4 years' imprisonment imposed on the appellant was clearly within the range of sentences imposed for breach of trust cases by employees (State v Munesh Chand Criminal Case No. HAC122 of 2009(22 March 2011), State v Panapasa Criminal Case No. HAC34 of 2009). Ground 2 is not a compelling ground for an extension of time.

Result
[12] Extension of time refused.

Leave to appeal against sentence refused.

.................................
Hon. Justice D. Goundar
JUSTICE OF APPEAL

At Suva

19 September 2014

Solicitors:

Office of the Legal Aid Commission for Appellant

Office of the Director of Public Prosecutions for Respondent