Roqica v State [2014] FJCA 50; AAU34.2012 (14 April 2014)

IN THE COURT OF APPEAL
On appeal from the High Court

CRIMINAL APPEAL NO: AAU0034 OF 2012
(High Court Case No. HAA 21 of 2011)

BETWEEN:

KELEPI ROQICA
Appellant

AND:

THE STATE
Respondent

Coram: Goundar JA

Counsel: Appellant in person
Mr. L. Fototfili for the Respondent

Date of Hearing: 27 March 2014
Date of Ruling: 14 April 2014

RULING

[1] This appeal is against a judgment of the High Court in its appellate jurisdiction. The High Court judgment was delivered on 28 February 2012. This appeal was filed on 18 May 2012. The appeal is out of time by two months. No reasons given for the delay.

Proceedings in the Magistrates' Court
[2] The appellant pleaded guilty to one count each of robbery with violence and unlawful use of motor vehicle. He was sentenced to 7 years' imprisonment for robbery with violence and 12 months' imprisonment for unlawful use of motor vehicle, to be served concurrently. A non-parole period of 6 years was fixed.

Proceedings in the High Court
[3] The appellant appealed against sentence only in the High Court. The appeal was dismissed with a minor alteration. The sentence for unlawful use of motor vehicle was reduced to 3 months' imprisonment because the maximum available for that offence was 6 months' imprisonment. The total head sentence and the non-parole period remained the same.

Present appeal
[4] The appeal to this Court is against both conviction and sentence.

[5] The grounds of appeal are:

"Ground 1: That the plea taken in the Magistrates Court was equivocal and the learned appellate judge failed to rectify the error in his appellate jurisdiction.

Ground 2: That the appellant was prejudiced due to lack of legal representation.

Ground 3: That the learned sentencing magistrate and the appellate judge misdirected themselves in respect to the joint enterprise principle regarding the aggravation of facts."

[6] The appeal falls within the ambit of section 22 of the Court of Appeal Act. Section 22 provides:

"22 (1) 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 ....:

Provided that no appeal shall lie against the confirmation by the [High Court] of a verdict of acquittal by a magistrate's court.

[(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) 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]."

[7] An appeal against conviction from a judgment of the High Court in its appellate jurisdiction can only lie on a ground which involves a question of law alone. The appellant pleaded guilty in the Magistrates' Court after his application for legal aid was refused. He informed the court that he wanted to plead guilty. The charge was read and explained to him in I-taukei language. He told the learned Magistrate that he understood the charges. Facts supporting the charges were tendered. After admitting the facts, the appellant mitigated. After mitigation, he was convicted and sentenced. The appellant seems to think that since he was charged under the Penal Code he should not been dealt under the Criminal Procedure Decree that had come into operation. The procedure for conviction arising from a guilty plea was not changed by the Criminal Procedure Decree. The Decree adopted the same procedure that was provided in the repealed Criminal Procedure Code. There is nothing in the record to suggest that the appellant's guilty plea was equivocal. In any event, the appellant elected not to appeal against his conviction to the High Court. There is no judgment of the High Court to give rise to an appealable error of law alone to this Court.

[8] To succeed in his appeal against sentence, the appellant must demonstrate that either his sentence was unlawful or was passed in consequence of an error of law.

[9] Section 35(2) of the Court of Appeal Act gives a single judge power to dismiss an appeal if satisfied that the appeal is bound to fail because there is no right of appeal.

[10] Clearly, the individual terms of imprisonment for robbery with violence and unlawful use of motor vehicle are lawful sentences. The Magistrates' Court and the High Court had jurisdiction to impose those sentences and the sentences are within the maximum prescribed by the Penal Code. I am satisfied the sentences were not passed in consequence of an error of law. The appeal is bound to fail because there is no right of appeal.

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

Hon. Justice D. Goundar
JUSTICE OF APPEAL