Ratubalavu v The State [2003] FJHC 201; HAM0012D.2003S (18 March 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO: HAM0012 OF 2003S

Between:

SIRELI RATUBALAVU
Applicant/Appellant

And:

THE STATE
Respondent

Counsel: Applicant/Appellant in Person
Mr S. Leweniqila for State

Hearing: 14th March 2003
Ruling: 18th March 2003

JUDGMENT

The Applicant applies for leave to appeal out of time. Because a similar application had been made, and refused in the lower court, this court has no jurisdiction to entertain a second such application. He does however have a right to appeal the learned Magistrate’s decision. He asked that his application be treated as an appeal. I have agreed.

The Applicant was charged with the following offences:

FIRST COUNT

Statement of Offence

INDECENT ASSAULT: Contrary to Section 154(1) of the Penal Code Act 17.

Particulars of Offence

SIRELI RATUBALAVU, between 1998 and the 27th day of May 2001, at Navua in the Central Division, unlawfully and indecently assaulted a girl namely [THE COMPLAINANT].

SECOND COUNT

Statement of Offence

INDECENTLY ANNOYING FEMALE: Contrary to Section 154(4) of the Penal Code Act 17.

Particulars of Offence

SIRELI RATUBALAVU, between 1998 and the 27th day of May 2001, at Navua in the Central Division, with intent to insult the modesty of a woman namely [THE COMPLAINANT], uttered insulting words at the said [THE COMPLAINANT].

He was sentenced to 3 years imprisonment on Count 1, and 2 years imprisonment on Count 2 consecutive to Count 1.

The facts of this case, as outlined by the prosecutor were that between 1998 and April 2001, the Applicant/Appellant touched his stepdaughter’s legs as she slept. On 27th April 2001, the Applicant/Appellant told his stepdaughter that he wanted to sleep with her. She became annoyed, ran away, and told one Jagdish Narayan who saw her crying. He told her mother. She reported the matter to police. The facts were admitted. The Applicant/Appellant also admitted 11 previous convictions.

The learned Magistrate’s sentencing remarks were as follows:

“I have considered the plea of guilty, the mitigation and the reconciliation. Unfortunately, this offence is getting prevalent, and it should be stopped. The only way to stop/prevent it is to send them to prison. I know in this case, it would have chain reaction on accused families.

The accused had betrayed the trust bestowed on him to look after the victim who is his step-daughter. I am sure he must have promised the mother of the victim to look after her before they got married. That promise has been broken by his own desires towards the victim. You have had 11 PCs all are not related to this offence.

Because of your plea of guilty I shall give you 1/3 discount, and I order as follows:

Count 1

Accused is sentenced to three years imprisonment.

Count 2

Accused is sentenced to 12 months imprisonment to be consecutive to count 1.

The above is considered together with the compulsory remission when you go into prison.

28 days to appeal.”

The Appellant applied for leave to appeal out of time but the application was refused on 27th June 2002. The appeal was 2 months out of time. The reason given on the court file by the learned Magistrate was that the 28 day period for appeal had been properly explained to the Appellant when he was sentenced on the 6th of March 2002. The question for the High Court is whether the learned Magistrate erred in failing to grant leave. The principles relevant to the grant or refusal of an application to enlarge time to appeal include the inability to obtain the court record, lack of legal representation and other “good cause.” The merits of the appeal and the length of time that has lapsed since the order was made are also relevant matters.

In this case, there appears to be some merit in allowing enlargement of time. Firstly, the facts outlined suggest that a concurrent rather than a consecutive sentence might have been appropriate and that there may have been an error in considering the “compulsory remission” period. Secondly, only two months have lapsed since sentence was passed. Thirdly the Appellant was not represented and was in custody when he filed his late appeal.

In these circumstances there was good cause to justify the enlargement of time.

I therefore set aside the learned Magistrate’s refusal to enlarge time and substitute it with a grant of leave to appeal out of time. The Appellant’s letter for enlargement of time may be treated as an appeal petition for this purpose.

The court file is to be returned to the Magistrates Court for the record to be prepared and returned to the High Court.

Nazhat Shameem
JUDGE

At Suva
18th March 2003