|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the Magistrates’ Court]
CRIMINAL APPEAL NO.AAU 179 of 2017
[In the Magistrates’ Court at Suva Case No.EJ4/15]
BETWEEN:
AISAKE NACAVU VULA
JAMES KOROKOROVATU
Appellant
AND:
STATE
Respondent
Coram: Prematilaka, JA
Counsel: Ms. S. Nasedra for the Appellant
Ms. E. Rice for the Respondent
Date of Hearing: 24 December 2020
Date of Ruling : 29 December 2020
RULING
[1] The appellants stood charged in the Magistrate’s court of Suva exercising extended jurisdiction on a single count of aggravated robbery contrary to section 311(1)(a) of the Crimes Act, 2009 committed on 08 January 2015 at Nabua in the Central Division. Particulars of the offence read as follows.
‘AISAKE NACAVU & JAMES KOROKOROVATU, in company of each other on the 08th of January, 2015 at Nabua in the Central Division stole Wallet containing $260.00 cash the property of SANJAY MANOJENDRA PRATAP.’
[2] The appellants had pleaded guilty to the charge voluntarily and admitted the summary of facts. The learned Magistrate had convicted the appellants and sentenced them on 24 November 2017 to 05 years and 11 months of imprisonment without fixing non-parole terms.
[3] The appellants being dissatisfied with the sentence had signed a timely notice of appeal on 11 December 2017 (which reached the CA registry on 29 December 2017). Legal Aid Commission on 29 June 2020 had submitted an amended notice of appeal against sentence along with written submissions. The respondent had filed its written submissions on 30 July 2020. Thereafter, the Legal Aid Commission had filed applications for bail pending appeal on behalf of the appellants, their affidavits, affidavits of sureties and written submissions on 03 August 2020. The state had respondent by way of written submissions on 03 September 2020.
[4] In terms of section 21(1)(c) of the Court of Appeal Act, the appellants could appeal against sentence only with leave of court. The test for leave to appeal is ‘reasonable prospect of success’ (see Caucau v State AAU0029 of 2016: 4 October 2018 [2018] FJCA 171, Navuki v State AAU0038 of 2016: 4 October 2018 [2018] FJCA 172 and State v Vakarau AAU0052 of 2017:4 October 2018 [2018] FJCA 173, Sadrugu v The State Criminal Appeal No. AAU 0057 of 2015: 06 June 2019 [2019] FJCA87 and Waqasaqa v State [2019] FJCA 144; AAU83.2015 (12 July 2019) in order to distinguish arguable grounds [see Chand v State [2008] FJCA 53; AAU0035 of 2007 (19 September 2008), Chaudry v State [2014] FJCA 106; AAU10 of 2014 and Naisua v State [2013] FJCA 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds.
[5] Further guidelines to be followed for leave to appeal when a sentence is challenged in appeal are well settled (vide Naisua v State CAV0010 of 2013: 20 November 2013 [201SC 14; House v The King [1936] HCA 40; (1936) 55 CLR 499, Kim Nam Bae v ae v The State Criminal AppeaAAU0015 and
[6]
(01st appellant)
‘1. That the learned tjudge erred in law and in fact when he sentenced the Appellant using the wrong principle rele resulting in a harsh sentence.’
(02nd appellant)
1. That the learned trial judge erred in law and in fact when he sentenced the Appellant using the wrong principle resulting in a harsh sentence.
2. That the learned trial judge erred in law and in fact when he failed to discount the appellant’s time in remand.’
[7] The summary of facts as stated in the sentencing order is as follows.
‘2] Summary of facts revealed that when the complainant was on his way home after work, on the 08th day of Janaury, 2015 at about 11.00 p.m. at Grantham Road, the first accused grabbed him from the back and the 02nd accused searched his trousers pocket and stole the Wallet containing $260.00 cash’
01st ground of appeal (both appellants)
[8] The Learned Magistrate had applied the sentencing tariff set in Wise v State [2015] FJSC 7; CAV0004.2015 (24 April 2015) i.e. 08 to 16 years of imprisonment and picked the starting point at 08 years. He had found no aggravating factors. Since the appellants had pleaded guilty on the trial date the Magistrate had not considered the usual discount for an early guilty plea but only a reasonable discount for saving time of court. He had considered the fact that the appellants had no previous convictions. However, the wallet had been recovered without the money inside. For the mitigating factors the Magistrate had deducted 02 years and further 01 month had been discounted for the period of remand ending up with the head sentence of 05 years and 11 months. In view of the fact that the appellants had been first time offenders the Magistrate had decided not to impose a non-parole period.
[9] The trial judge had applied the sentencing tariff of 08-16 years of imprisonment set in Wise v State [2015] FJSC 7; CAV0004.2015 (24 April 2015) and taken 08 years as the starting point without being mindful that the tariff in Wise was set in a situation where the accused had been engaged in home invasion in the night with accompanying violence perpetrated on the inmates in committing the robbery. The factual background in Wise was as follows.
‘[5] Mr. Shiu Ram was aged 62. He lived in Nasinu and ran a small retail grocery shop. He closed his shop at 10pm on 16th April 2010. He had a painful ear ache and went to bed. He could not sleep because of the pain. He was in the adjoining living quarters with his wife and a 12 year old granddaughter.
[6] At around 2.30am he heard the sound of smashing windows. He went to investigate and saw the door of his house was open. Three persons had entered. The intruders were masked. Initially Mr. Ram was punched and fell down. One intruder went up to his wife holding a knife, demanding her jewellery. There was a skirmish in which Mr. Ram was injured by the knife. Another of the intruders had an iron bar.
[7] The intruders got away with jewellery worth $550 and $150 cash. Mr. Ram went to hospital for his injuries. He had bruises on his chest and upper back, and a deep ragged laceration on the left eye area around the eyebrow, and another laceration on the right forehead. The left eye area was stitched.’
[10] From the summary of facts it is difficult to see how the factual background of this case fits into the factual scenario the
Supreme Court encountered in Wise. It appears to me that this is a kind of aggravated robbery called ‘street mugging’
where the sentencing tariff is 18 months to 05 years [vide Raqauqau v State [2008] FJCA 34; AAU0100.2007 (4 August 2008), Tawake v State [2019] FJCA 182; AAU0013.2017 (3 October 2019) and Qalivere v State [2020] FJCA 1; AAU71.2017 (27 February 2020)].
[11] The fact that this act of aggravated robbery had been committed around 11.00 p.m. while the complainant was on his way home after
work and the money in the wallet in a sum of $260.00 was never recovered may safely be treated as having the effect of increasing
the seriousness of the crime warranting a higher sentence than an act of usual street mugging might attract. It is clear from the
appeals coming before this court that the so called ‘street mugging’ incidents have been consistently on the rise since
2008 when the tariff was decided as between 18 months and 05 years, of course, with flexibility to go above the higher limit depending
on the seriousness. It is also clear that more often than not the victims of ‘street mugging’ have been people coming
home after work in the night.
[12] However, what is relevant to the appeal point taken up is that the learned Magistrate had committed a sentencing error in following the sentencing tariff set in Wise and therefore, he had acted on a wrong sentencing principle warranting the appellate court’s possible intervention in the matter of sentence.
[13] As the Court of Appeal remarked in Qalivere v State [2020] FJCA 1; AAU71.2017 (27 February 2020), acting upon a wrong sentencing range could affect the whole sentencing process and eventually the ultimate sentence.
‘[19] ................When the learned Magistrate chose the wrong sentencing range, then errors are bound to get into every other aspect of the sentencing, including the selection of the starting point; consideration of the aggravating and mitigating factors and so forth, resulting in an eventual unlawful sentence.
[14] Therefore, following the sentencing tariff set in Wise v State and picking 08 years as the starting point demonstrates a sentencing error by the Magistrate having a reasonable prospect for the appellant to succeed in appeal regarding his sentence.
02nd ground of appeal (02nd appellant)
[15] The appellant contends that he was in remand for 04 months and the Magistrate had deducted only 01month. There is nothing to indicate that the 02nd appellant had been in remand for 04 months and he had brought it to the notice of the Magistrate.
[16] There is no reasonable prospect of success of this ground of appeal.
[17] The final sentence is outside and above the tariff for ‘street mugging’ mainly due to the fact that the sentencing Magistrate had been guided by the wrong sentencing tariff, for had the tariff for ‘street mugging’ been considered the final sentence may not have gone beyond the tariff given the facts of this case. Therefore, it is for the full court to decide on the appropriate sentence being mindful of the applicable tariff. When a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step in the reasoning process that must be considered (vide Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006). In determining whether the sentencing discretion has miscarried the appellate courts do not rely upon the same methodology used by the sentencing judge. The approach taken by them is to assess whether in all the circumstances of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies within the permissible range [Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015)].
Law on bail pending appeal
[18] In Tiritiri v State [2015] FJCA 95; AAU09.2011 (17 July 2015) the Court of Appeal reiterated the applicable legal provisions and principles in bail pending appeal applications as earlier set out in Balaggan v The State AAU 48 of 2012 (3mber 2012 2012) [2012] FJCA 100 and repeated in Zhong v The State AAU 44 of 2013 uly 2014)4) as fo.
‘[5] There is also before the Court an application for ba60;bail pendingal pursto section 33(2the Act. Act. The power of the Court of Appe Appeal to grant ;bail pending appeall &#ay be esed busticappecappeal pursuant to section 35(1) of thef the Act.
[6] In Zhon>Zhong –v- 1;v- The State (A of 215 July 20 m) I made made some observations in relation to n to the granting of bail pending appealis a is appropriate toat thbservations in thin this ruling:
"[25] Whether banding appealppeal> shoulgranted is a mattr ther the exercise of the Court's discretion. The words uses used in section 33 (2) are clear. The Court may, if it sees fit, admit aellanb> bail pend pending appeal. The discretion is n is to be exercised in accordance with established guidelines. Those guidelines are to be found in the earlier decisions of this court and other cases determining such applications. In addition, the discretion is subject to the provisions of the Bail Act 2002. The discretion must be exercised in a manner that is not inconsistent with the ef="http://www.paclii.jlii.j/legis/num_act/ba200241/">41/">Bail Act.
[26] The starting point in considering an application for bailing a is to reto recall the distinction between a en a person who has not been convicted and enjoys the presumption of innocand a person
who has been convicted and sentenced to a term of imprisonment. In the former rmer case, under section 3(3) of the
[27] Once it has been accepted that under the a hretp://www.paclii.olii.olii.org/fj/legis/num_act/ba200241/">Bail Act there is no presumpin fain favour of bail for victed person appealing against conviction and/or sentence, it is necessary to consiconsider the factors that are relevant to xercise of the discretion. In the first instance these hese are set out in section 17 (3) of the Bail Act which states
(a) the liood of success in the appeaappeal;
(b) the likely time before the appeal hearing;
(c) the proportion of the original sentence which will have been served by the appellant when the appeal is heard."
[28] Although section 17 (3) imposes an obligation on the Court to take into account the three matters listed, the section does not
preclude a court from taking into account any other matter which it considers to be relevant to the application. It has been well established by cases decided in Fiji that bail pending app16l&#/b>b> should only be granted thee there are exceptional circumstances. In Apisai Vyawa Tora anda and Others –v- R (1978) 24 FLR >, the Court of Appeal emphasised the overriding importaportance of the exceptional circumstances requirement:
"It has been a rule of practice for many years that where an accused person has been tried and convicted of an offence and sentenced
to a term of imprisonment, only in exceptional circumstances will he be released on bail during the pending of an appeal."
[29] The requirement that an applicant establish exceptional circumstances is significant in two ways. First, exceptional circumstances may be viewed as a matter to be considered in addition to the three factors listed in section 17 (3) of the i>. Thus, even if an applicant does not bring his application within section 17 (3), there may be exceptional circumstances which may be sufficient to justify a grant of bail pendingal. S Secondly, exceptional circumstances should be viewed as a factor for the court to consider when determining the chances of success.
[30] This second aspect of exceptional circumstances was discussed by Ward P in Ratu Seniloli and Othd Others –v- The State (unreporteminal appeal No. No. 41 of 2004 delivered on 23 August 2004) at page 4:
"The likelihood of success has always been a factor the court has coned in applications for bail pg appeal and secti (3)7 (3) now enacts that requirement. However it gives no indication that there has been any change in the manner in which
the court determines the question and the courts in Fiji have lonuired a very high likelihoolihood of success. It is not sufficient that the appeal raises arguable points and it is not for the single judge on an application for bail pendingal to b>to delve into the actual merits of the appeal. That as was pointed out in Koya's case (Koya v The State unrep AAU 11 of 1996 by Tiky Tikaram P) is the function of ull Cafter hearing fulg full argument and with the advantage of e of having
the trial record before it."
[31] It follows the long standing requiremuirement that bail pending al;b> will only be granted ceptioeptional circumstances is the reason why "the chances of the appeal succeeding" factor in section 17 (3) has been interpreted by this Court to m very liked of suof successccess."
[19] I19] In Ratu Jope Seniloli & Ors. v The State AAU 41 of 2004 ( 23 t 2004)2004) the Court of Appeal said that the likelihood
of success must be addressed first, and the two remaining matters.17(3the Bail Act namely "the likely beme befe before the appeal
hearing" and "the proe proportion of the original sentence which will have been served by the applicant when the appeal is heard"
are directly relevant ' only if the Court accepts there is a real likelihood of success' otherwise, those latter matters 'are otiose'
(See also Ranigal v State [2019] FJCA 81; AAU0093.2018 (31 May 2019).
[20] In Kumar v State [2013] FJCA 59; AAU16.2013 (17 June 2013) the Court of Appeal said ‘This Court has applied section 17 (3) on the basis that the three matters
listed in the section are mandatory but not the only matters that the Court may take into account.’
[21] In Qurai v State [2012] FJCA 61; AAU36.2007 (1 October 2012) the Court of Appeal stated
‘It would appear that exceptional circumstances is a matter that is considered after the matters listed in section 17 (3) have been considered. On the one hand exceptional circumstances may be relied upon even when the applicant falls short of establishing a reason to grant bail under section 17 (3).
On the other hand exceptional circumstances is also relevant when considering each of the matters listed in section 17 (3).’
[22] In Balaggan the Court of Appeal further said that ‘The burden of satisfying the Court that the appeal has a very high likelihood of success rests with the Appellant’.
"... The fact that the material raised arguable points that warranted the Court of Appeal hearing full argument with the benefit of the trial record does not by f lead to the conclusion thon that there is a very high likelihood that the appeal will succeed...."
[24] Justice Byrne in Simon John Maca v. Thv. The State Cr. Ao. AAU0103 of 2008 in 8 in his Ruling regarding an application for bail pending appeal
"[30]........All these matteferred to by the Appellantllant and his criticism of the trial Judge for allegedly not giving adequate directions to the assessors are not matters which I as a single Judge hearing an application for bail pending al;b> should attempt even tment oent on. They are matters for the Full Court ....”
[25] Qurai quoted Seniloli therse Sta60;AAU 41 of 2004 (23 August 2004) wher where Ware Ward P had said
‘"The general restriction on granting bail ng ap#16l b> as established bys by Fiji Fiji _ _ _ is that it may only be granted where there are exceptional circumstances. That is still the position and I do not accept tha consng wh such circumircumstances exist, the Court cannot consiconsider tder the applicant's character, personal circumstances and any other matters relevant to the determination. I also note that, in many of the cases where exceptional circumstances have been found to exist, they arose solely or principally from the applicant's personal circumstances such as extreme age and frailty or serious medical condition."
[26] Therefore, the legal position appears to be that the appellant has the burden of satisfying the appellate court firstly of the existence of matters set out under section 17(3) of the Bail Act and thereafter, in addition the existence of exceptional circumstances. However, an appellant can even rely only on ‘exceptional circumstances’ including extremely adverse personal circumstances when he cannot satisfy court of the presence of matters under section 17(3) of the Bail Act.
[27] Out of the three factors listed under section 17(3) of the Bail Act ‘likelihood of success’ would be considered first and if the appeal has a ‘very high likelihood of success’, then the other two matters in section 17(3) need to be considered, for otherwise they have no practical purpose or result.
[28] If an appellant cannot reach the higher standard of ‘very high likelihood of success’ for bail pending appeal, the court need not go onto consider the other two factors under section 17(3). However, the court would still see whether the appellant has shown other exceptional circumstances to warrant bail pending appeal independent of the requirement of ‘very high likelihood of success’.
[29] The appellant has already satisfied this court that he deserves to be granted leave to appeal against sentence and it now appears that there is not only a reasonable prospect of success but also a very high likelihood of success in his appeal against sentence.
[30] I shall now consider the second and third limbs of section 17(3) of the Bail Act namely ‘(b) the likely time before the appeal hearing and (c) the proportion of the original sentence which will have been served by the appellant when the appeal is heard’ together.
[31] The appellant has already served more than 03 years of imprisonment. Given that the sentencing tariff for ‘street mugging’ is between 18 months and 05 years and that the appellant is not likely to be visited with a sentence towards the higher end of the tariff due to the specific facts and circumstances as enumerated above, if he is not enlarged on bail pending appeal at this stage, he is likely to serve perhaps even more than the whole of the sentence the full court is likely to impose on him after hearing his appeal which, as things stand at present, may not happen in the immediate future. The appellant has filed a timely appeal and the considerable time taken since then to consider the question of leave to appeal and the final appeal by the full court in the future, are matters beyond his control. Therefore, it is in the interest of justice that section 17(3) (b) and (c) are considered in favour of the appellant in this case.
[32] Therefore, I am inclined to allow the appellants application for bail pending appeal and release them on bail on the conditions given in the Order.
Order
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJCA/2020/263.html
