Kaverevere v The State [2003] FJHC 207; HAM0016J.2003S (23 May 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS ACTION

HAM0016 OF 2003S

Between:

NEMANI KAVEREVERE
Applicant

And:

THE STATE
Respondent

Hearing: 22nd May 2003
Judgment: 23rd May 2003

Counsel: Applicant in Person
Mr. D. Prasad for State

JUDGMENT

The Appellant was convicted on the 25th of July 2002 in the Suva Magistrates Court of the following offence:

Statement of Offence

ESCAPING FROM LAWFUL CUSTODY: Contrary to Section 138 of the Penal Code Act 17.

Particulars of Offence

NEMANI BULIRUARUA KAVEREVERE, on the 5th day of July, 2002 at Suva in the Central Division, whilst being in the lawful custody of POC 882 SAMUELA NODRAKORO, escaped from such custody.

He was sentenced to 18 months imprisonment, consecutive to his existing prison term. On 16th October 2002 he filed a petition of appeal in the Suva Magistrates Court. The learned Magistrate refused leave to appeal out of time saying that the appeal was well out of time, and that the Applicant had not shown any good grounds to justify the grant of leave. Leave was refused.

The Appellant then applied to this court for leave. On being advised that a new application for leave to appeal out of time could not be entertained by the High Court he asked to have the application heard as an appeal.

In his application in the Magistrates’ Court, the Appellant said that the reason for the late appeal (2 months) was that he lacked understanding of the criminal law. This was not accepted by the learned Magistrate as a good reason.

In this Court, he said that he did not file his appeal within 28 days of sentence because he was in solitary confinement for two months and was unable to send his appeal papers to the court. He also said that his appeal is meritorious.

State counsel submitted that his appeal had no merit at all. He said that the Appellant had previous convictions for the same offence, that he had been at large for 18 days, necessitating a search party and that the 18 month consecutive term was right in principle.

I agree with the learned Magistrate that in the Magistrates’ Court, the Appellant gave no good reason for the filing of the late appeal. The submission that he was unfamiliar with the criminal process lacks conviction when one peruses his list of previous convictions dating back to 1991. Further, he said nothing to the Magistrate about solitary confinement.

As for the merits of his appeal, his is an appeal against sentence. His reason for escaping from prison custody was that he wanted to attend his grandfather’s funeral and the Prisons Department had refused him permission. This reason does not explain why he remained at large for 18 days. Further he had three previous convictions for escaping from lawful custody for which he received consecutive terms of 2 months, 3 months and one concurrent term of 6 months imprisonment, respectively.

In Jeremaia Donu and Ilikena Bula Crim. App. No. HAA0043 of 2001S, I upheld a sentence of 9 months imprisonment for the offence of escaping from lawful custody. In Isireli Rokovucago –v- Reg Crim. App. No. 22 of 1980, Tuivaga CJ said that sentences for this offence ranged from six to twelve months imprisonment, depending on the particular circumstances of the case. He said:

“In this way there would not be so much disparity or the appearance of disparity in the sentences passed by different Courts. Anything above or below this scale should be regarded as exceptional and can only be justified by its own particular circumstances.”

In Jeremaia Donu (supra) the Appellants had escaped at the time of the hostage crisis, taking advantage of the law and order crisis at the time.

The facts of this case are not as serious as those of Jeremaia Donu (supra). Logically, the Appellant should have received a lesser term. There is therefore merit in this appeal.

For this reason, despite the spurious reason given for the late appeal, I allow his appeal against the refusal of enlargement of time in the Magistrates’ Court. Further, with the prompt submission of the court record, I am able to consider the appeal proper.

In the interests of uniformity, the Appellant ought to have been given a sentence in the range of 6 – 9 months. I quash his sentence of 18 months and substitute it with a term of 8 months to run consecutively to any existing terms of imprisonment.

The appeals succeed.

Nazhat Shameem
JUDGE

At Suva
23rd May 2003