Senaca v State [2014] FJCA 17; AAU0005.2012 (28 February 2014)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO. AAU0005 OF 2012
(High Court Appeal No. HAA014/11S)

BETWEEN:

ANASEINI SENACA
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA

Counsel : No appearance for Appellant
Mr. Korovou, M. for the Respondent

Date of Hearing : 24 February 2014
Date of Ruling : 28 February 2014

RULING

[1] Following a trial in the Magistrates' Court, the appellant was convicted of theft and sentenced to 3½ years imprisonment with a non-parole period of 2½ years. The appellant successfully appealed against sentence, and on 28 November 2011, the High Court reduced the sentence to 2½ years imprisonment with a non-parole period of 2 years.

[2] On 22 February 2012, the appellant filed this appeal. Being the second appeal, the appellant's right of appeal is restricted under section 22(1A) of the Court of Appeal Act. The appellant carries the burden to show that either her sentence was an unlawful one or was passed in consequences of an error of law.

[3] The appellant's sole ground of appeal is that her non-parole period is harsh. This ground requires consideration of facts. The learned judge had power to fix a non-parole period and the non-parole period imposed on the appellant is neither unlawful nor passed in consequences of an error of law.

[4] Furthermore, the appellant had served her sentence and was released from the prison in July 2013. Her current residential address is unknown and the Registry was not able to serve the Notice of Hearing on her.

[5] Taking all these matters into account I am satisfied that this appeal should be summarily dismissed because there is no right of appeal and that the appeal is bound to fail.

[6] The appeal is dismissed under section 35(2) of the Court of Appeal Act.

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