Turagaloaloa v State [2011] FJHC 52; HAM139.2010 (17 February 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

High Court Criminal Miscellaneous No: HAM 139 OF 2010

BETWEEN:

KAMINIELI TURAGALOALOA
Applicant

AND:

STATE
Respondent

Counsel: For Applicant - In Person
For Respondent [State] - Mr Fotofili, L

Date of Hearing: 23/11/2010

Date of Judgment: 17/02/2011

JUDGMENT

The Applicant was convicted on his own plea of guilty, for the offence of Robbery with Violence, in Criminal file No.: 1383/2007 by the Magistrates Court of Nasinu.

Although he pleaded guilty on 26/11/2007 he was sentenced on10/3/2010. Unfortunately, the chronology of events that took place between 26/11/2007 and 10/3/2010 are not filed of record.

However, the State (Respondent) submitted that the court record for 26/02/2010 and 09/03/2010 suggested that the Applicant was at liberty without bail, as the State had to serve him a NOAH to attend court. The Applicant had then appeared in court on 9/3/2010 where he was remanded and then sentenced on 10/3/2010, the following day.

Applicant was also sentenced for 8 other different cases where he pleaded guilty and the sentences were ordered to run concurrently. Therefore, the Applicant is now serving a term of 8 year imprisonment.

Applicant appealed against the above 8 year sentence imposed in Magistrates Court case No. 1383 of 2007. His amended grounds of appeal, which were filed on 21/10/2010, are:

1. That the Learned Trial Magistrate erred in sentence when her Ladyship breached the parity sentencing principle of co-defendants on the sentencing base (starting point) and thereby the disparity of sentence was such that I received too long a harsh and manifestly sentence in comparison to my co-accused.
   
2. That the Learned Trial Magistrate erred to give proper discount of one third (1/3) for the early guilty plea and the fact that I was a first offender and the sentence imposed would have a crushing and would possibly take away any prospect of reform.
   
3. That the sentence be back date to the 26th November 2007 when I first pleaded guilty and was convicted accordingly.
   
4. That the Learned Trial Magistrate incorrectly took his sentencing base (starting point) of 10 years which was the highest pointiest of the scale of the Magistrates jurisdiction.
   

The Applicant is appealing against his sentence approximately 3 months out of time, as it was received on 7/7/2010 by the Registry.

Provisions to appeal are made in terms of Section 248 of the Criminal Procedure Decree 2009 which is almost similar to Section 310 of the Criminal Procedure Code Cap 21.

Section 248 of Criminal Procedure Decree 2009:

(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.

(3) For the purposes of this section and without prejudice to its generality, "good cause" shall be deemed to include:-

• (a) A case where the appellant's lawyer was not present at the hearing before the Magistrates Court, and for that reason requires further time for the preparation of the petition;
  
• (b) Any case in which a question of law of unusual difficulty is involved;
  
• (c) A case in which the sanction of the Director of Public Prosecutions or of the commissioner of the Fiji Independent Commission Against Corruption is required by any law;
  
• (d) the inability of the appellant or the appellant's lawyer to obtain a copy of the judgment or order appealed against and a copy of the record, within a reasonable time of applying to the court for these documents.
  

In terms of the above Section 248(2), the High Court may at any time for good cause enlarge the period of limitation prescribed by this section.

The Applicant's reasons for delay given in his application are, that he had no proper knowledge. I bear in mind that he was a serving prisoner and also that he was unrepresented by Counsel in the Magistrates Court. Therefore, the reasons for the delay given by the Applicant can be accepted.

The term good cause referred in Section 248 (2) of the Criminal Procedure Decree (which is similar to Section 310 of the Criminal Procedure Code), on which an appeal out of time can be accepted, was defined in State v Dharmendra Krishna and Vincent P Singh Misc. Action No. HAM 20 of 1995L.
The court said:

The legislation (the Criminal Procedure Code) specifically refuses to limit the generality of "good cause". "Good cause" in my view must include the merit of the substantive application desired to be undertaken. By not observing the limit, the applicant has lost the unfettered right of appeal and must now, in an application to overcome this non-observance, run the gauntlet of satisfying the court that (inter alia) the appeal is not frivolous nor unnecessary. He must show all factors that are considered a "good cause". "Good cause" cannot be taken to mean "a good excuse for being late" – it must be read as a "good cause" with all that that generally implies – such as the merit of this substantive appeal.

Therefore, I would now consider whether there is merit in appeal against the sentence, or whether the appeal on the face of it is baseless.

Ground No. 1

As mentioned above, the Applicant was sentenced for 8 cases including this case in the Magistrates Court. The Applicant says that the co-accused was given a lesser sentence than him. On inquiry from the Nasinu Magistrates Court, by Memorandum dated 23/11/2010, the Court Officer, Nasinu Magistrates Court has informed this court, that the co-accused in this case (Case No.: 1383/07) was yet to be sentenced as Production Order was yet to be served on him, since he was a serving prisoner in another matter. Therefore, the officer of the Nasinu Magistrates Court has confirmed that the co-accused in this case is yet to be sentenced. Therefore the ground of appeal is baseless.

Ground No.2

Applicant urged that his early plea of guilty was not considered by the learned Magistrate, and the fact that he was a first offender too was not considered.

In her sentencing remark in paragraph 11 of her Sentencing Judgment, the learned Magistrate has clearly taken both these facts into account. Further, all other personal circumstances of the Applicant were also taken into account.

In regards to the discount to be given for early guilty plea, in case of Daunabuna v State (2009) FJCA 23; AAU 0120.2007 (4 December 2009) the Fiji Court of Appeal said that encouragement will be given to early plea of guilty, only if they lead to a substantial reduction in the sentence imposed. That does not mean that the sentencing Judge should show a precisely quantified or quantifiable period or percentage as having been allowed.

Hence one third allowance is not a hard and fast rule that a court must follow in sentencing offenders, for their early pleas of guilty.

In this case the learned Magistrate has considered the Applicants' early plea of guilty and given a substantial reduction for all the mitigating factors in the circumstances, and therefore this ground is without merit.

Ground No.3

The Applicant states that the sentence should be backdated to 26/11/2007, as that was the date he first pleaded guilty.

Section 23 of the Sentencing and Penalties Decree applies to this case as applicant was sentenced on 10/3/2010.

Section 23 (1): A sentence of imprisonment commences on the day that it is imposed.

In terms of Section 23(1) above sentence of imprisonment should commence on the day on which it was imposed. Therefore this ground of appeal should necessarily fail.

Ground No. 4

In terms of Section 7 of the Criminal Procedure Decree 2009 a Magistrate is empowered to impose a sentence of not exceeding 10 years of imprisonment.

In this case the learned Magistrate has imposed a sentence of 8 years of imprisonment, which is well within her perview. Further the tariff for gang robbery is between 8-14 year of imprisonment State v Raymond Johnson Crim. Case HAC 120 of 2008S; State v Rokonabale [2008] FJHC 226; HAC 118.2007 (15 September 2008)

In this case the learned Magistrate has chosen 10 years imprisonment as the starting point which is at the lower end of tariff and after considering the aggravating and mitigating circumstances, arrived at a sentence of 8 years imprisonment which is at the lowest end of tariff.

Hence the 8 years of imprisonment is not at all harsh and excessive and this ground is without merit.

In the above premise, as there is no prospect of success of appeal, and as there is no merit in grounds of appeal, I dismiss the applicant's application to appeal out of time.

Priyantha Fernando
JUDGE

At Suva
17th February, 2011.