Rabete v State [2022] FJHC 446; HAA004.2022 (27 July 2022)

IN THE HIGH COURT OF FIJI

AT LABASA

[APPELLATE JURISDICTION]

CRIMINAL APPEAL NO. HAA 04 OF 2022

BETWEEN : EMOSI RABETE

AND : STATE

Counsel : Appellant in Person

Ms M Lomaloma for the Respondent

Date of Hearing : 27 July 2022

Date of Judgment : 27 July 2022

JUDGMENT

1. This is an application for an enlargement of time to appeal against sentence of 4 years imprisonment imposed on the appellant after he was found guilty of unlawful possession of 2724.5g of marijuana in the Magistrates’ Court at Savusavu. With time spent in custody on remand the appellant was ordered to serve 3 years, 11 months and 21 days with a non-parole period of 2 years, effective from 25 November 2020, the date the sentence was pronounced.

2. Section 248 of the Criminal Procedure Act states:

(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.

3. The appellant was represented by counsel during the proceedings in the Magistrates’ Court. In his sentencing remarks, the learned magistrate expressly informed the appellant that he had 28 days to appeal. By the time the appellant gave his notice of appeal on 1 March 2022, the appeal was late by 1 year and 2 months. He did not justify the delay in his notice. His proposed grounds of appeal are vague.
   
4. At the hearing of the application the appellant presented a plea for clemency stating that he had reformed in prison.
   
5. The plea for clemency is late. The appellant chose to defend the charge. He was found guilty after trial. The learned magistrate took into consideration the mitigating and aggravating factors before imposing a term of imprisonment based on the lower end of the tariff set out by the Court of Appeal in Sulua v State FJCA 33; AAU0093.2008 (31 May 2012).
   
6. Not only the length of the delay is substantial, there is no ground of appeal that will probably succeed if an enlargement of time is allowed (Kumar v State unreported Cr App No CAV0001 of 2009; 21 August 2012).
   

7. The application for an enlargement of time to appeal against sentence is refused.

...............................................

Hon. Mr. Justice Daniel Goundar

Solicitors:

Appellant in Person

Office of the Director of Public Prosecutions for the Respondent