Kolinitoga v State [2010] FJHC 305; HAM089.2010S (13 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

MISCELLANEOUS CASE NO. HAM 089 OF 2010S

TOMASI KOLINITOGA

vs

STATE

Counsels: Mr. F. Vosarogo for the Applicant
Ms. J. Cokanasiga for the State

Hearing: 25th June 2010
Ruling: 13th August 2010

RULING ON LEAVE TO APPEAL OUT OF TIME

1. In Suva Magistrate Court Criminal Case No. 1499/07, the applicant was sentenced to a total term of 15 months imprisonment, for offences of "personation", contrary to section 369 of the Penal Code, Chapter 17; "forgery", contrary to section 335(1)(c) of the Penal Code, and "larceny", contrary to sections 259 and 262 of the Penal Code. The sentence was pronounced on 13th March 2009. He was given 28 days to appeal, if he was dissatisfied with the sentence.

2. In Suva Magistrate Court Criminal Case No. 09/08, the applicant faced 9 counts of "forgery", contrary to section 335(1)(c) of the Penal Code, Chapter 17; 9 counts of "uttering a forged document", contrary to section 343(1) of the Penal Code, and 9 counts of "obtaining money on forged document", contrary to section 345 of the Penal Code. On 13th March 2009, the court sentenced the applicant on the above 27 counts to a total term of 15 months imprisonment. He was given 28 days to appeal if he was dissatisfied with the decision.

3. In Suva Magistrate Court Criminal Case No. 08/08, the applicant faced 2 counts of "forgery", contrary to section 335(1)(c) of the Penal Code, Chapter 17; 2 counts of "uttering a forged document", contrary to section 343(1) of the Penal Code, and 2 counts of "obtaining money on forged document", contrary to section 345 of the Penal Code. He was sentenced to a total of 15 months imprisonment on those 6 counts, and was given 28 days to appeal if he was dissatisfied with the decision. The 15 months imprisonments in Criminal Case No. 1499/07, 09/08 and 08/08 were made consecutive to each other, making a total of 3 years 9 months imprisonment, for all the three files.

4. The facts scenario in the three files were somewhat similar. The applicant had the habit of forging people's signatures on bank withdrawal slips, uttering the same to the bank, and obtained money by deception. In Criminal Case No. 1499/07, he did the above to complainant No. 1, and obtained $260, on 10th January 2006. In Criminal Case No. 09/08, the applicant did the above to complainant No. 2, and by 6th September 2007, had unlawfully obtained a total of $4,155. In Criminal Case No. 08/08, the applicant obtained from complainant No. 3 a total of $1,050. All the funds were not recovered from the applicant.

5. The applicant did not appeal within 28 days. His appeal period expired on 10th April 2009. Section 310(1) of the Criminal Procedure Code, Chapter 21, reads as follows:

Every appeal shall be in the form of a petition in writing signed by the appellant or his barrister and solicitor and shall be presented to the Magistrates' Court from the decision of which the appeal is lodged within twenty-eight days of the date of the decision appealed against:

Provided that the Magistrates' Court or the Supreme Court may, at any time, for good cause, enlarge the period of limitation prescribed by this section.

6. After 1st February 2010, the applicable law was section 248(1) and (2) of the Criminal Procedure Decree 2009, which reads as follows:

(1) Every appeal shall be in the form of a petition in writing signed by the appellant or the appellant's lawyer, and within 28 days of the date of the decision appealed against—

(a) it shall be presented to the Magistrates Court from the decision of which the appeal is lodged;

(b) a copy of the petition shall be filed at the Registry of the High Court; and

(c) a copy shall be served on the Director of Public Prosecutions or on the Commissioner of the Fiji Independent Commission Against Corruption.

(2) The Magistrates Court or the High Court may, at any time, for good cause, enlarge the period of limitation prescribed by this section.

7. Because the applicant did not appeal within 28 days from the date of the Magistrate Court's decision on 13th March 2009, he, in law, lost his right to appeal. That right can only be regained if the Magistrate Court or the High Court allowed an appeal out of time. A pre-condition for regaining that appeal right is for the applicant to show "good cause".

8. I have carefully perused the court record to find out whether or not the learned Resident Magistrate erred in convicting and sentencing the applicant. In my view, he followed the proper procedures, and identified the right law, in convicting and sentencing the accused. I can find nothing to fault the learned Resident Magistrate's decision. In my view, if leave to appeal is granted, the applicant chances of success is slim. There was only matter I had reservation about. The total sentence of 3 years 9 months imprisonment for the three file were too lenient. In my view, a sentence of 4½ years imprisonment would be appropriate given the level of deceit the applicant did on the unsuspecting complainants, in this case.

9. In my view, no good cause has been shown by the applicant. His application to appeal out of time is therefore declined.

Salesi Temo
ACTING JUDGE

AT Suva
13th August 2010