Nasigaya v State [2008] FJSC 40; CAV0011.2007S (25 February 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0011/2007S
(Fiji Court of Appeal No. AAU0004/07)

BETWEEN:

JOSUA NASIGAYA
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon. Justice Keith Mason, Judge of the Supreme Court
The Hon. Justice Robert French, Judge of the Supreme Court
The Hon. Justice Mark Weinberg, Judge of the Supreme Court

Hearing: 18 February 2008

Counsel: Petitioner in Person
W. Kurisagila for the Respondent

Date of Judgment: Monday, 25 February 2008, Suva

JUDGMENT OF THE COURT

1. On 21 September 2005 Josua Nasigaya was convicted on his own plea of guilty of the offence of housebreaking, entering and larceny committed on 16 September 2005 and the offence of larceny of cattle committed between 8 September 2005 and 9 September 2005. Mr Nasigaya was sentenced to five years imprisonment in respect of the cattle theft and one years imprisonment in respect of the housebreaking offence.
   
2. On 28 September 2005 Mr Nasigaya filed a petition of appeal in the High Court challenging the sentences imposed upon him. On 16 February 2006 Govind J, having heard the appeal, held that the sentence of five years was excessive and the sentence for the housebreaking offence inadequate. He substituted sentences of three and a half years for the cattle stealing and three years for the housebreaking. He ordered that the sentences be served concurrently. The result was a total sentence of three and a half years which ran from the date that the original sentence had been imposed, namely 21 September 2005. Without remissions this would result in a release date of 21 March 2009. The Court was informed that there is an automatic statutory remission of one third of the term imposed, subject to good behaviour. This would produce a release date of 21 January 2008 or thereabouts.
   
3. On 2 January 2007 Mr Nasigaya filed an application to the Court of Appeal for leave to appeal out of time against the judgment of the High Court. He said in his appeal that judgment was given on 9 March 2006, which appears to have been an error. It may be that that is the date upon which he was informed of the result. His proposed grounds of appeal were in substance:
   

1. That the sentence imposed on him for larceny of cattle was "totally harsh and excessive".

2. That the High Court judge did not appreciate that he pleaded guilty to the offence of larceny of cattle on his first appearance in the Magistrates Court.

3. That insufficient weight was given to his plea of guilty.

4. The sentencing principles were not properly weighed by the High Court on his appeal.

5. This was a hardship plea based on the fact that his parents are old and sick.

4. On 6 February 2007 the President of the Court of Appeal made orders in Chambers, recorded thus:
   

"[RE: LEAVE TO APPEAL OUT OF TIME]

2nd Appeal

No right of appeal

Dismissed under section 35(2)"

5. On 26 February 2007 Mr Nasigaya applied to this Court in a letter that referred to the sentences imposed upon him. However, the form of petition which he filled out referred to a conviction on 15 March 2006 for escaping legal custody. The picture that this presented to the Court was somewhat confused as it appeared that at the time that his petition came on for hearing, Mr Nasigaya had in fact served the sentence imposed upon him in respect of cattle stealing and housebreaking.
   
6. The petition of appeal set out in the Court Book referred to a conviction for escaping from lawful custody. The rest of the materials concerned the sentencing appeal. In our opinion this is a matter which should have been attended to by the Court’s Registry in ensuring that the materials put before the Court related to the appeal actually being pursued by the petitioner. Clarification of the position required inquiries by the Court which should not have been necessary had the materials been properly prepared and their preparation properly supervised.
   
7. The Court’s inquiries indicate that Mr Nasigaya was convicted of escaping from lawful custody together with another prisoner, Mr Misioka, whose petition falls for consideration later in this session. Mr Misioka evidently contends that the six month penalty for escaping lawful custody which he received, should have been made wholly concurrent with the sentence he was already serving.
   
8. Mr Nasigaya joined Mr Misioka in an appeal to the Court of Appeal which raised the concurrency point. On 21 March 2007 the Court of Appeal delivered judgment dismissing each of those appeals. At the same time it ordered reinstatement to both Mr Nasigaya and Mr Misioka of a remission period which had been reduced because of some allegation relating to loss of government property. This was a matter not before the Court of Appeal.
   
9. The petition before the Court and the materials relating to it all focussed upon the sentences that Mr Nasigaya received for stealing and for housebreaking. There is no petition properly before this Court identifying any grounds of appeal in relation to a sentence imposed for escaping from legal custody.
   
10. The sentencing appeal is obviously moot and, in any event, the Court of Appeal was right to dismiss the application for leave to appeal out of time against the judgment of the High Court. The delay was lengthy and unexplained and the appeal without merit.
    
11. We would observe that, if it be the case that Mr Nasigaya is now serving a term of imprisonment added to his previous term on account of an escape from lawful custody, there can be no complaint that such term was made consecutive upon his existing sentence. There would seem to be little deterrent value in punishing a prisoner for escaping lawful custody if the punishment resulted in no additional time served. See generally Misioka v The State Criminal Appeal No CAV0012/07.
    
12. On the basis that the petition before us relates to the decision of the Court of Appeal given on 6 February 2007 in connection with the sentence imposed for the primary offences in this case, it will be dismissed.
    

Hon Justice Keith Mason
Judge of the Supreme Court

Hon Justice Robert French
Judge of the Supreme Court

Hon Justice Mark Weinberg
Judge of the Supreme Court

Solicitors:
Petitioner in Person
Office of the Director of Public Prosecutions, Suva for the Respondent