Deo v State [2015] FJCA 86; AAU0015.2014 (15 June 2015)

IN THE COURT OF APPEAL, FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.AAU 0015 OF 2014
[High Court Criminal Case No. HAC005 of 2013]

BETWEEN:

1. RAVINESH DEO
2. ASHNEEL KUMAR
Appellants

AND:

THE STATE
Respondent

Coram : Hon. Mr. Justice Daniel Goundar
Counsel : Mr. M. Yunus for the Appellants
Mr. L. J. Burney for the Respondent

Date of Hearing : 9 June 2015
Date of Ruling : 15 June 2015

RULING

[1] The appellants were jointly charged with arson contrary to section 362(a) of the Crimes Decree 2009. They were convicted after trial in the High Court at Labasa on 13 March 2014. They were sentenced as follows:

Ravinesh Deo – 4 years and 10 months' imprisonment after 4 years as non-parole.

Ashneel Kamal – 5 years' imprisonment with 4 years as non parole period.

[2] The application for leave was filed on 27 April 2014, although they wrote the application on 8 April 2014. Since the appellants conveyed their intentions to appeal within time, I grant an extension of time to seek leave to appeal against conviction and sentence.

[3] The grounds of appeal are:

1. The learned trial judge erred in law and in fact in properly directing the assessors on the totality of evidence before they were to give the opinion and in particular the circumstances surrounding the confessions.
   
2. The learned judge erred in law in failing to correctly apply the principle of sentencing before setting a minimum term to be served before pardon may be considered.
   
3. The learned judge erred in law in failing to correctly apply the parity principle.
   

Conviction Appeal

[4] The ground of appeal against conviction is vague. The ground lacks particulars of the alleged error. At trial, the prosecution relied upon the appellant's confessions made under caution. The admissibility of the confession was determined in a voir dire. In the summing up, the assessors were directed to consider the truth of the confessions. When the trial judge considered his judgment, he correctly directed himself that he had to be satisfied of the truth of the appellants' confessions. The directions were correct in law. There is no arguable error in the directions on the confession. Appeal against conviction is not arguable.

Sentence Appeal

[5] The second ground of appeal against sentence was abandoned at the leave hearing. When asked to identify the arguable error under the first ground of appeal against sentence, counsel for the appellants submitted that the appellants' length of non-parole periods are too close to their head sentences and therefore it could be argued that the trial judge had not taken into account the prospect of rehabilitation which is one of the purposes of punishment under the Sentencing and Penalties Decree 2009. In my judgment, this issue is arguable.

Result

Extension of time granted.
Leave to appeal against conviction refused.
Leave to appeal against sentence granted.

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

Solicitors:
..................................... for Appellants
Office of the Director of Public Prosecutions for State