Nasigaya v State [2012] FJHC 1108; HAM20.2012 (16 May 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO.: HAM 12 OF 2012

BETWEEN:

JOSUA NASIGAYA

AND:

STATE

Counsels: Applicant in Person
Mr T Qalinauci for the Respondent

Date of Hearing : 30th April 2012
Date of Judgment : 16th May 2012

JUDGMENT

1. This is an application by the applicant for extension of the period of appeal.
   
2. The applicant had two cases before the Magistrates Court for Robbery with Violence and Burglary with Larceny. The case numbers were 223/09 and 225/09.
   
3. In 223/09 the Applicant was found guilty on his own plea with another person and sentenced to 10 years imprisonment.
   
4. In 225/09 the applicant with another was found guilty on his own plea and sentenced to 18 months for the 1st Count and 14 months for the 2nd Count.
5. The learned Magistrate after considering the mitigation submissions ordered sentences in both cases to run concurrently.
   
6. In CF 223/09 the offence of Robbery with violence committed on 10/07/2009.
   
7. In CF 225/09 Offence of Burglary and Larceny committed on 14/07/2009.
   
8. These two offences were committed on two different dates, places and two different course of transactions.
   
9. The Magistrate after considering the plea of guilty and other mitigating circumstances sentenced this applicant for 10 years imprisonment for the Robbery with violence in 223/09 and 18 months and 14 months (both to run concurrently) in 225/09. The Magistrate had ordered both sentences of 10 years and 18 months were to be implemented concurrently.
   
10. The applicant submits that he submitted his appeal to the Prison authorities but due to his inter-transfers from Prison facilities the said appeal had not reached to this Court.
    
11. The applicant was convicted on the 25/02/2010 and sentenced on 11/03/2010. The application to enlarge the time of appeal dated 12th September 2011 was filed on the 23rd January 2012. This application had been filed 1 year 10 months and 12 days later. Infact 1 year and 9 ½ months after the appealable period.
    
12. The applicant had pleaded guilty to the charges leveled against him at the Magistrate Court.
    
13. He is complaining that he did not understand the procedure and further he was told by his Counsel from Legal Aid Commission that he will get a suspended sentence. Therefore, he is challenging the conviction and the sentence.
    
14. Considering section 247 of the Criminal Procedure Decree states as follows:
    

"No appeal shall be allowed in the case of an accused person who has pleaded guilty, and who has been convicted on such plea by a Magistrates Court, except as to the extent, appropriateness or legality of the sentence."

15. Section 248 of the said Decree makes provision for enlargement of appealable period:
    
    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 –
       
       1. It shall be presented to the Magistrates Court from the decision of which the appeal is lodged;
       2. A copy of the petition shall be filed at the Registry of the High Court; and
       100. A copy shall be served on the Director of Public Prosecution 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:
       
       1. A case where the appellant' lawyers was not represented at the hearing, before the Magistrates Court, and for that reason requires further time for the preparation of the petition;
          
       2. Any case in which a question of law of unusual difficulty is involved;
          
       100. A case in which the sanction of the Director of Public Prosecution of the Commissioner of Fiji Independent Commission Against Corruption is required by any law;
            
       4. The inability of the appellant or the appellant's lawyer to obtain a copy of the judgment or order against and a copy of the record, within a reasonable time of applying to the court for these documents (emphasis added)
          
16. According to the above section the applicant should show good cause to obtain enlargement of time to appeal.
    
17. It is observed from the record that the applicant is not a new person to the Court system. Up to 2006 he had 10 previous convictions. In one case (CF 406/05 Date 21/09/2005) he was sentenced to 5 years imprisonment.
    
18. Even though the applicant was well acquainted with the system he claims that he was mislead by his Counsel, cannot be accepted as a good cause. This appears it is after thought of the Applicant at the prison.
    
19. I carefully considered the application and the submission of the applicant, submission of the State, the sentencing order by the Magistrate and the Magistrate Court record, and found that the applicant was given reasonable time to consider his plea. Further, the Courts frowns at plea bargaining. The Accused or his Counsel has all the right to make their submission but the Trial Magistrate, after careful consideration, decide what should be the appropriate sentence. The Appellant has no right or privilege to dictate terms to the Trial Magistrate.
    
20. Considering all, I find that this is not a fit and proper case to enlarge the time of appeal.
    
21. Further, I find the Trial Magistrates has not imposed the non parole period under section 18(1) of the Sentencing & Penalties Decree. Hence I fix the non parole period under the said section as 8 years.
    
22. 30 days to appeal to the Court of Appeal.
    

S. Thurairaja
Judge

At Lautoka
16th May 2012

Solicitors : Applicant in Person
Office of the Director of the Public Prosecution for the Respondent