Matavura v The State [2005] FJHC 154; HAM0025D.2005S (28 June 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Criminal Misc. Case Nos: HAM0025, 26, 27, 29, 30 and 31 of 2005S

Between:

LISALA MATAVURA
Applicant

And:

THE STATE
Respondent

Hearing: 27th June 2005
Ruling: 28th June 2005

Counsel: Applicant in Person
Mr. A. Ravindra-Singh for State

RULING

The Applicant wishes to appeal against a number of sentences imposed on him since May 2002. The last conviction and sentence (in File 414/03) is dated the 20th of April 2004. He is more than a year out of time for this case, and almost 3 years out of time for sentences passed in July 2003. He has made no application for extension of time in the Magistrates’ Court.

On being asked, in court for the reasons for the delay, he said that his initial appeal petition had been destroyed by a prison officer at Korovou, and that he only filed a subsequent appeal when he was transferred to Naboro Prison. In relation to the merits of his appeal he said that the appeal would succeed because the learned Magistrate had imposed custodial terms without taking into account a fine imposed on him of $65.00 for a separate offence. In his written submissions, which he tendered after I had risen from the bench, he said that the learned Magistrate had failed to consider his guilty pleas.

The State opposes the application, saying that no satisfactory reason had been given for the delay and that the appeals were unlikely to succeed.

On the 10th of June 2002, the Applicant pleaded guilty to one count of housebreaking entering and larceny. The value of the goods stolen amounted to $1345.00. A suspended sentence was imposed on the 10th of June 2002.

On the same day, he pleaded guilty to another charge of house breaking and was given another suspended sentence (File 1292 of 2002). On the 28th of June he broke into another house and stole items to the total value of $885.00. He pleaded guilty to this charge on the 9th of July 2002, and rather surprisingly, was given yet another suspended sentence. It appears that the presiding Magistrate was not told that he had committed the offence whilst serving a suspended sentence (Case No. 1539 of 2002).

On the 6th of May 2003, he broke into another house in Nadi, with intent to commit larceny. He was given another suspended sentence and fined $65.00. On the question of activation of the suspended sentence, the learned Magistrate carefully set out the offending record of the Applicant since 2002. She then sentenced him to 18 months imprisonment for Larceny of fruit (863/04) and 3 months imprisonment for giving false name to a police officer (867/04) to be served concurrently with each other. She then activated the suspended sentences in part, on Cases 1291/02, 1539/02 and 1292/02. She reduced the total term because of the portions already served, and activated 12 months of one term, 1 month on 1539/02, and fully activated the 18 months imposed in 414/03. The total activated suspended sentence is 31 months imprisonment. This is to be served consecutive to the 18 months imposed in Cases 863 and 867/04. He is serving a total of 49 months imprisonment.

Given the Applicant’s apparent reluctance to respect the terms of his suspended sentences, and given his unimpressive list of previous convictions (47 in total), I cannot conclude that the learned Magistrate’s approach was in any way flawed. Nor am I able to discover even an argument of an error in sentencing. Despite his guilty pleas, the Magistrate gave him many opportunities to avoid custodial sentence. Unfortunately, he continued to offend.

Further, I am not persuaded that the Applicant has offered me an acceptable reason for this delay in filing his appeal. Calculating the delay from the activation of his sentences (which I understand is his real complaint) he is now a year out of time.

This application to enlarge time is refused.

Nazhat Shameem
Judge

At Suva
28th June 2005