Qaraniqio v The State [2005] FJHC 463; HAA0094J.2005S (30 September 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0094 of 2005S

Between:

EPELI QARANIQIO
Applicant

And:

THE STATE
Respondent

Hearing: 23rd September 2005
Judgment: 30th September 2005

Counsel: Applicant in Person
Mr. A. Rayawa for State

JUDGMENT

The Applicant applies for leave to appeal out of time. He was sentenced, on the 15^th of October 2004, to 12 months imprisonment for escaping from lawful custody. The State objects to leave being granted, saying that the Applicant has given no good reason for being out of time, and that the appeal in any event, has no merit.

The court file, which was sent to the High Court with commendable speed shows that the Applicant pleaded guilty to escaping from lawful custody on the 15^th of October 2004. The facts were that on the 27^th of September 2004, the Applicant with three others cut the burglar bars in the dormitory of the Suva Prison and escaped by climbing the fence. His mother informed the police and he was arrested on the 14^th of October 2004, by the Valelevu Police. He was charged with escaping from lawful custody. For some reason, he was not jointly charged with the other. It is possible that at the time of his arrest, his co-accused had not been apprehended.

The Applicant has 9 previous convictions. He is currently serving a 3 year term of imprisonment for robbery with violence imposed on court files 1023/03 and 1038/03. A 12 month suspended sentence was purportedly activated, also in court file 1023/03 but no such term was in fact imposed in that case. Indeed the only record of a suspended sentence is one imposed on him on the 21^st of February 2002 for burglary and larceny in court file 324/01. However if that term was activated, concurrent to the 2 year and 3 year concurrent terms imposed on the 2^nd of October 2003, then the effect of such activation made no difference to the total term of 3 years imposed. It appears therefore that he is serving a 3 year term for robbery with violence, and a 12 month term thereafter, for escaping from lawful custody.

In mitigation the Applicant said that he could not stand prison life. The court said that the maximum possible under the section was 2 years imprisonment. The Applicant had been at large for 3 weeks. Discount was given for his guilty plea and he was sentenced to a total of 12 months imprisonment consecutive to his existing 3 year term of imprisonment.

The Applicant said that he did not file his appeal in time because he is not familiar with the law. However, you do not need to be familiar with the law to understand what the learned Magistrate told him after imposing sentence. The court record reads clearly “28 days to appeal.” Further, the Applicant is not new to the court system. He has been offending since 2002. His reason for being almost one year late with his petition of appeal is unacceptable.

His appeal has no obvious merit. Although the tariff on a first offence of escaping is 1 month to 9 months imprisonment (Savenaca Pe v. The State Crim. App. No. 0024 of 1997; Viliame Naituku v. The State Criminal Appeal No. 3 of 1996, per Pain J), higher sentences are justified where the escapes are well-planned, organized by a group, and where police and prison resources have been spent over a long period of time in the apprehension of the offender. This example of escaping fits into this latter category. The Applicant escaped with a group of men by cutting the dormitory bars. This suggests careful planning and pre-meditation. He was not apprehended until three weeks had lapsed. I would have picked a starting point of 9 months imprisonment increased it to 18 months for the planning, the group involvement and the late apprehension. I would have reduced it by 6–9 months for the guilty plea. The 12 month term is therefore correct in principle. The order that it be served consecutively is also correct in principle (Filipe Delana v. The State HAM0034 of 2005). There is no merit in the appeal. Nor has the Applicant shown good grounds for enlargement of time.

Having received the court file I see that the learned Magistrate placed a handwritten note on a memorandum dated 7/4/05 from the O/C Suva Magistrates Court, to the effect that leave to appeal out of time was refused.

I therefore treat this matter as an appeal from that refusal. The Applicant was not entitled to apply for leave to the High Court once leave was refused by the learned Magistrate.

Nazhat Shameem
JUDGE

At Suva
30th September 2005