Raisoqo v State [2011] FJHC 454; HAM105.2011 (18 August 2011)

IN THE HIGH COURT OF FIJI
AT SUVA

APPELLATE JURISDICTION

HIGH COURT CRIMINAL APPEAL NO: HAM 105 OF 2011

BETWEEN:

MEREIA RAISOQO
APPELLANT

AND:

STATE
RESPONDENT

Counsel: Appellant in Person
Ms. P. Low for Respondent

Date of Hearing: 15th July, 2011
Date of Judgment: 18th August, 2011

JUDGMENT

[1] The Applicant was charged with 18 counts of forgery and 18 counts of uttering forged documents in the Magistrates Court. On 13th day of January, 2011 on her own plea of guilty she was convicted and sentenced for 2 years imprisonment on each count to run concurrently. It was ordered that she is not eligible for parole for a period of 12 months.

[2] This application is made for leave to appeal out of time against the sentence of the Magistrates Court.

[3] In Seresere v State (2008) FJCA 71; AAU0032. 2008S (5 November 2008) in paragraph [6] the Court held:

"[6] The appeal or leave appeal is about one month out of time but the practice of the Court has been to accept that delays of up to three months are excusable where the appellant has been in prison since conviction. Accordingly leave to appeal out of time will be given unless the appeal has no merit".

[4] In this case the appeal is out of time by 103 days. Application was sent to the Court of Appeal registry and by the time the High Court registry received the application, it was 127 days out of time.

[5] The reasons given for the delay are not convincing. Applicant submitted that her baby daughter who was in the prison with her has been released home upon approval from the Magistrates Court. As the daughter is released and that she is breast feeding she now has decided to appeal against the sentence. This shows that she had no intention to file an appeal when the baby daughter was with her. This I do not find as an acceptable good reason for the delay to appeal. Therefore the Court will now consider whether there is merit on the grounds of Appeal.

[6] The applicant has submitted that she is a first offender and she pleaded guilty. Further she then submitted her personal difficulties.

[7] I perused the sentencing judgment of the Learned Magistrate from the Magistrate's Court file and I find that the Learned Magistrate has considered the mitigating factors mentioned before him.

[8] However in the sentencing judgment I find that the Learned Magistrate has not considered or taken into account that the appellant was a first offender, when deciding on the sentence.

[9] The applicant submitted that after her guilty plea in 2009, the case was going on until 2011 for sentencing.

[10] On perusal of the sentencing judgment of the Learned Magistrate I find that the applicant had pleaded guilty on 31/7/2009 and was sentenced on 13/1/2011, after about 1 ½ years of her pleading guilty.

[11] In Deo vs The State (2005) RJCA 62; AAU 025 of 2005S (11 November 2005)Fiji Court of Appeal; said in paragraph 30 of the judgment:

"[30] On the other hand, undue delay in the investigation and trial of such offences will tend to strengthen the mitigating effect of such matters. The courts in Fiji seem almost to possess a culture of delay. Magistrates and judges should not lose sight of the detrimental effect on the person charged of a seriously delayed determination of his case. In the case of a first offender, that is likely to be particularly destructive".

[12] After pleading guilty, this case had been hanging over the applicant's head for about 1 ½ years awaiting punishment which the Learned Magistrate failed to consider. Therefore I find that the said ground urged by the appellant, merits consideration by this court in the exercise of its appellate powers.

[12] I accordingly grant leave to appeal out of time.

Dated at Suva this 18th day of August 2011.

Priyantha Fernando
Judge