Lee v The State [2004] FJHC 182; HAM0005D.2004S (11 March 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO: HAM0005 OF 2004S

Between:

PENIASI LEE
Applicant

And:

THE STATE
Respondent

Hearing: 27th February 2004
Ruling: 11th March 2004

Counsel: Applicant in Person
Mr. P. Bulamainaivalu for State

RULING

The Applicant applies for leave to appeal out of time. The hearing of this application has been made difficult by the fact that the court file is apparently unobtainable. It is a very old file and has been put away in the court archives.

In his written application, the Applicant said that he wished to appeal against the revocation of his compulsory supervision orders dated 23rd June 1987 and the 16th of March 1988, and his conviction for breach of a compulsory supervision order in respect of the same matter, on an unknown date.

The State was similarly handicapped by lack of knowledge. However, State counsel also concluded, as I have, that the Applicant’s real complaint is that when his compulsory supervision order was revoked, he was ordered to serve the entire unexpired period of imprisonment, without deduction of the period of time served on the compulsory supervision order. The Applicant’s complaint is that he was required to serve a period of imprisonment of 17 months and 22 days, without deduction for the 9 months already served on the compulsory supervision order.

It is apparent that the Applicant is 17 years out of time and his only explanation for this extraordinary delay is that he is unrepresented and unskilled in the law. I cannot accept that this is an adequate explanation in the circumstances.

As to the merits of the appeal, the provisions of the Prisons Act are very clear. Section 66(2) of the Prisons Act provides:

“If any person in respect of whom a compulsory supervision order is in force–

(a) is convicted of an offence; or

(b) contravenes or fails to comply with any term or condition of the order, he shall be guilty of an offence and shall be liable to imprisonment for 3 months.”

This provision exists in addition to the powers of the Commissioner of Prisons to revoke the compulsory supervision order under section 66(1) of the Prisons Act and section 67(1) provides that the revocation involves service of the unexpired period of imprisonment on the prisoner’s release. This clearly means the period left to be served when the prisoner was released on compulsory supervision, not when he was re-arrested for breach of the order. In other words, the applicant had to serve the full term left unserved on the date he was released on CSO.

There is clearly no merit in this appeal. There is no proper explanation for the delay. It also appears that the Applicant has served the term he complains of and is simply using the appellate jurisdiction of this court to lay a basis for a claim in damages. Finally, since his complaint appears to be in respect of the Commissioner’s powers, a review of those powers is outside the jurisdiction of this court.

No good grounds have been shown to justify enlargement of time. This application is refused.

Nazhat Shameem
JUDGE

At Suva
11th March 2004