Tamanivakabauta v State [2014] FJHC 812; HAM170.2014 (10 November 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: HAM 170 OF 2014

BETWEEN:

EPARAMA TAMANIVAKABAUTA
Applicant

AND:

STATE
Respondent

Counsel : Applicant in Person
Mr. S. Babitu for Respondent

Date of Hearing : 07 November 2014
Date of Ruling : 10 November 2014

RULING

1. This is an application for leave to appeal out of time.
   
2. The applicant was charged before the Magistrate Court of Lautaka in three separate cases for Burglary and Theft.
   
3. He pleaded Guilty and convicted and sentenced for 6 years and 10 months imprisonment with non-parole period of 4 years and 10 months on 24th June 2013.
   
4. This application was filed on 21st July 2014 and therefore 12 months out of time.
   
5. The reasons given for the delay are that:
   
   • (i) The applicant was not represented at the trial
   • (ii) The applicant is uneducated lay person
   • (iii) The applicant was not provided with a copy of the sentence
     
6. The Section 248 of the Criminal Procedure Decree provides:
   
   • (1) Every appeal shall 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.

7. The principles for an extension of time to appeal are settled. The Supreme Court in Kumar v State; Sinu v State [2012] FJSC 17; 2 CAV0001.2009 (21 August 2012) summarized the principles at paragraph [4]:
   

"Appellate courts examine five factors by way of a principled approach to such applications. These factors are:

(i) The reason for the failure to file within time.

(ii) The length of the delay.

(iii) Whether there is a ground of merit justifying the appellate courts consideration.

(iv) Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?

(v) If time is enlarged, will the respondent be unfairly prejudiced?"

8. More recently, in Rasaku v State [2013] FJSC 4; CAV0009, 0013.2009 (24 April 2013), the Supreme Court confirmed the above principles and said at paragraph [21]:
   

" These factors may not be necessarily exhaustive, but they are certainly convenient

yardsticks to assess the merit of an application for enlargement of time. Ultimately, it is for the court to uphold its own rules, while always endeavoring to avoid or redress any grave injustice that might result from the strict application of the rules of court. "

9. The applicant was not represented at the trial. However, when considering the previous record, the applicant is not a novice to the criminal justice system. The learned Magistrate had clearly stated that the applicant has 28 days to appeal. Therefore there is no merit in the grounds for delay. The facts submitted cannot be considered as justifiable grounds to extend the appealable period by 12 months. There is no merit in these grounds for delay.
   
10. However, considering the fact that the applicant was not represented at the Magistrate Court and this application, this court considered the grounds of appeal on sentence in order to ascertain any substantial prejudice had been caused to the applicant or there are grounds of merit justifying this court's consideration.
    
11. The grounds of appeal against the sentence are:
    
    • (i) That the learned Magistrate erred in law when he failed to consider separate aggravating feature for individual cases before enhancing the sentences for individual offences
    • (ii) The aggravating features not recognized by law was wrongly justified to enhance the sentence
    • (iii) That insufficient weight was given for the guilty plea
    • (iv) That insufficient weight was considered for mitigating factors
    • (v) That the enhancing of 6 years for the aggravating feature was severe and harsh and excessive in all circumstances of the case
    • (vi) That the sentence is harsh and excessive and wrong in all the circumstances of the case.
      
12. The learned Magistrate had given aggregate sentence acting under Section 17 of the Sentencing and Penalties Decree. That is correct procedure to follow considering the nature of the offences for which the applicant pleaded guilty.
    

"If an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or similar character, the Court may impose an aggregate sentence of imprisonment in respect of those offences that does not exceed the total effective period of imprisonment that could be imposed if the Court had imposed a separate term of imprisonment for each of them."

13. The learned Magistrate had selected a starting point of 3 years for the first count.
    

In State v Tabeusi [2010] FJHC 426; HAC 095-113.2010L (16 September 2010) the tariff for the offence of Burglary was discussed with accepted tariff being 2 years to 3 years after trial. In State v Mucunabitu [2010] FJHC 151; HAC 017.2010 (15 April 2010) it is held that the accepted tariff is 18 months to 3 years.

14. Then the learned Magistrate had identified following aggravating factors:
    
    • (i) The offence committed was well planned and well executed
    • (ii) Most of the items are not recovered (only $240 worth of items were recovered)
    • (iii) The total value of all items is quite high ($13,179)
    • (iv) Blatant disrespect to the complainant's right to their respective properties
    • (v) Damaging back doors as a result of forcefully opening it
    • (vi) Complainants having to incur expenses at repairing doors that you forcefully opened and replacing the items stolen
      

Six years were added for the above.

15. Then 6 months were deducted for the late Guilty plea.
    
16. Further 6 months were deducted for the following mitigating factors.
    
    • (i) 22 years and married
    • (ii) Ask for forgiveness
    • (iii) Ready to serve the sentence
    • (iv) Promise it'll be last time to appear in Court
      
17. For the time period in remand the learned Magistrate had observed as follows:
    

'From court records, you've been in remand since 1st May 2012 to 24th June 2013 which is a total of 1 year 2 months. This will be deducted from your sentence of 8 years. The balance is 6 years and 10 months imprisonment.'

18. The fact that items not recovered cannot be considered as an aggravating factor.
    
19. This position was affirmed by Hon. Mr. Justice Paul Madigan in Soko v State, [2011] FJHC 777; HAA 031.2011 (29 November 2011) where he held that:
    

'Items being recovered are often points of mitigation relied on by convicted accused

persons, but it's not appropriate to reverse the point and make lack of recovery an

aggravating feature.'

20. This point was also highlighted by Hon. Mr. Justice Priyantha Nawana in Vasuca v State [2012] FJHC 1244; HAA 03.2012(31 July 2012)
    

'As regards 'not all items were recovered', it must be stated that an inherent feature akin to the offences of theft and robbery is that the possessor is dispossessed of movable property temporarily or permanently. Deprivation of the property of its lawful possessor, therefore, is embedded in the offences themselves. Consequently the fact that all or some items of property were not recovered cannot be considered as an aggravating factor in offending in order to enhance the sentence. Conversely, if property is recovered, that might be a factor to mitigate the sentence but not vice- versa.'

21. Further time period considered as remand period for this case was wrong. The applicant was serving another sentence at that time.
    
22. The question that has to be considered is whether sentence fairly reflects the total criminality involved.
    
23. In Baleiwai v State [2011] HAA 9/11B (12 May 2011) it was held by Hon. Mr. Justice D. Goundar:
    

"[13] When an offender is sentenced for a number of offences, the court must look at the total criminality involved and impose a sentence that fairly reflects the total criminality involved.

[14] Within a span of three months, the appellant burgled eight homes. It appears that he had not learnt from his past sentences. He has a total of nine previous convictions, mostly for burglary. His last conviction was in 2007 for which he received a suspended sentence. Shortly after his suspended sentence expired, he committed these burglaries.

[15] Burglary of homes is a very serious form of violation of privacy. The courts take a very serious view to these types of offences.

[16] The appellant is a recidivist. The public must be protected from him.

[17] A total sentence of 5 years imprisonment for burglary committed on eight homes, in my judgment, reflects the total criminality involved. The sentence is not harsh or excessive."

24. Although the learned Magistrate had erred in considering wrong aggravating factor and deducting wrong period for time period in remand considering the total criminality involved and the applicant's previous record the final sentence is justified. Even if the above errors are corrected it will enhance the sentence. Therefore the applicant had failed to satisfy Court that there are grounds which will succeed if leave is granted.
    
25. For the reasons given above, application for leave to appeal out of time is dismissed.
    

Sudharshana De Silva
JUDGE

At Lautoka
10th November 2014

Solicitors: Applicant in person
Office of the Director of Public Prosecutions for Respondent