Vura v State [2008] FJSC 5; CAV0001.2005S (23 July 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0001 OF2005S
Fiji Court of Appeal No.AAU0061 of 2004S)

BETWEEN:

PAULA VURA
Petitioner

AND:

THE STATE
Respondent

Coram : The Hon. Justice Keith Mason, Judge of the Supreme Court
The Hon. Justice Kenneth Handley, Judge of the Supreme Court
The Hon. Justice Ronald Sackville, Judge of the Supreme Court

Hearing : Thursday, 17th July 2008, Suva

Counsel : Petitioner in Person
Ms. A. Driu for the Respondent

Date of Judgment: Wednesday, 23rd July 2008, Suva

JUDGMENT OF THE COURT

[1] This is an application by a former petitioner under s122(5) of the Constitution for the review by this Court of its own decision on 21 October 2005 to dismiss his petition for special leave to appeal. The petitioner had challenged the decision of the President of the Court of Appeal on 19 December 2004 to dismiss his appeal from the judgment of Shameem J. in the High Court on 15 October 2004. Shameem J. had dismissed the petitioner’s appeal from sentences imposed by a magistrate following his pleas of guilty to charges of armed robbery in company and associated offences committed during a home invasion at Lami (the subject offences).

[2] The President dismissed the applicant’s further appeal to the Court of Appeal as incompetent under s22(1A)(a) of the Court of Appeal Act which relevantly provides:

"No appeal under subsection (1) lies in respect of a sentence imposed by the High Court in its appellate jurisdiction unless the appeal is on the ground –

(a) That the sentence was an unlawful one or was passed in consequence of an error of law; or

(b) ........."

[3] The petition for special leave was based on a breach of the parity principle which had arisen as a result of lesser sentences being imposed on a co-offender. One Jone Di Atulaga had been sentenced by a different magistrate to 4 years imprisonment for the subject offences consecutive on consecutive sentences of 5 years for unrelated offences, some committed with Eparama Mani, some not, so that he was due to serve a total of 14 years full time custody. The magistrate applied the totality principle and reduced the sentences for the subject offences to avoid imposing sentences that would have a crushing effect on a relatively young offender. Because that co-offender would serve for a total of 14 years, 5 years longer than the applicant, the applicant had no justified grievance at that stage.

[4] The other co-offender Eparama Mani was sentenced by the same magistrate who sentenced Jone Di Atulaga, and at the same time, to a total of 9 years’ imprisonment for the subject offences, the same as those earlier imposed on the applicant. Eparama Mani was also sentenced for unrelated offences committed with Jone Di Atulaga to imprisonment for 5 years, making again a total of 14 years.

[5] The applicant’s appeal to the High Court was dismissed on 15 October 2004. On 22 October 2004 Shameem J. allowed the appeal of Jone Di Atulaga from the two sentences for 5 years consecutive imposed for unrelated offences some committed with Jone Di Atulaga, and some not, and substituted sentences of 2 years consecutive. Thus the total time to be served by that co-offender was reduced to 8 years. Shameem J. did not vary the sentences for the subject offences and counsel for the State did not remind her of the 9-year sentences she confirmed or imposed on the present applicant shortly before. This disparity was the basis for the applicant’s petition for special leave which was dismissed by this Court on 21 October 2005.

[6] On 17 January 2006 Winter J. allowed an appeal by the co-offender Eparama Mani from the sentences imposed on him for disparate offences committed with Jone Di Atulaga and reduced those sentences from 5 years concurrent to 2 years concurrent in conformity with the sentences earlier imposed by Shameem J. on Jone Di Atulaga for the same offences.

[7] Winter J. also allowed Eparama Mani’s appeal from the sentences totalling 9 years imposed for the subject offences because of a breach of the parity principle arising from the sentences for 4 years imposed on Jone Di Atulaga for those offences and substituted sentences of 6½ years. His Lordship did not refer to the sentences totalling 9 years for the subject offences confirmed or imposed on the applicant by Shameem J. which were not disturbed by the Court of Appeal, and this Court.

[8] The prisoner’s application under s122(5) of the Constitution seeks a re-exercise of this Court’s jurisdiction to grant special leave to appeal from the Court of Appeal in a criminal case. This jurisdiction is defined in s.7(2) of the Supreme Court Act as follows:

"In relation to a criminal matter, the Supreme Court must not grant special leave to appeal unless –

(a) a question of general legal importance is involved;

(b) a substantial question of principle affecting the administration of

criminal justice is involved; or

(c) substantial and grave injustice may otherwise occur".

[9] In Commonwealth of Australia v Bank of New South Wales [1950] AC 235, 294 the Privy Council described an appeal as follows:

"... the appeal by special leave is what it always has been, an appeal from an order or other judicial act which affects adversely the rights claimed by the appellant party ... an appeal is the formal proceeding by which an unsuccessful party seeks to have the formal order of a court set aside or varied in his favour by an appellate court."

[10] Earlier Lord Westbury LC said in Attorney General v Sillem ([1864] EngR 352; 1864) 10 HLC 704, 724 [1864] EngR 352; [11 ER 1200,1209]:

"An appeal is the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below".

[11] This Court can only allow an appeal from a judgment of the Court of Appeal where there has been some error which, if corrected, would justify a variation of the order below in favour of the appellant.

[12] The applicant appealed to the High Court from the sentences imposed by the magistrate. Section 22(1A) of the Court of Appeal Act, which permits a further appeal to the Court of Appeal from the decision of the High Court in such a case, limits that appeal to questions of law.

[13] The decision of Shameem J. to confirm the effective sentence of 9 years imposed on the applicant was not affected by legal error, in particular any legal error in the expression or application of the parity principle. The current disparity between the effective sentence of 9 years imposed on the applicant for the subject offences and the sentences imposed on his co-offenders did not exist at that time.

[14] The applicant’s appeal to the Court of Appeal did not, and could not identify legal error in the sentences confirmed or imposed by Shameem J. and it was obviously incompetent. The decision of Ward P. to dismiss the appeal as incompetent was unarguably correct when it was given, and in this respect nothing has changed. The disparity between the sentences imposed on the applicant and those imposed on his co-offenders which now exists does not establish legal error on the part of Shameem J. in her decision of 15 October 2004.

[15] Even if a renewed appeal to the Court of the Appeal from the decision of Shameem J. could now be brought, by leave, out of time, the result would still be the same. The disparity in the sentences of the co-offenders which has arisen since her judgment in September 2004 cannot establish legal error within the meaning of s22(1A) of the Court of Appeal Act. The renewed appeal to the Court of Appeal would still have to be dismissed as incompetent and this Court would still have to dismiss any petition for special leave.

[16] The disconnected and disordered appeals by the three co-offenders to the High Court, that of Eparama Mani, pursuant to an extension of time, has produced a gross disparity between their sentences. Shameem J. who heard the first two appeals at different times was not reminded of her decision in the first, Winter J. who heard the third was not informed of the first decision, or that Shameem J. had not been reminded of it before the second decision. If the three appeals had been heard together, or each judge had been properly informed of the earlier decisions, the sentences imposed on the co-offenders in the High Court may have been very different. The public could have a justified sense of grievance about the light sentences ultimately imposed on the co-offenders for the subject offences committed during this home invasion.

[17] The petitioner’s appeal to the High Court was heard first, and dismissed before there was any disparity. His further appeal to the Court of Appeal had to fail, as it did, because the decision of the High Court was not affected by legal error. The legal system in Fiji denies this petitioner any judicial remedy for the disparities created by the re-sentencing of his co-offenders in the High Court on 22 October 2004 and 17 January 2006 after his appeal was dismissed on 15 October 2004.

[18] The petitioner may well be able to obtain relief from the President, acting on the advice of the Commission on the Prerogative of Mercy established by s115 of the Constitution. Section 115(1)(c) allows the President to substitute a less severe form of punishment for that imposed by the Courts, and para (d)(i) enables the President to remit the whole or a part of the punishment imposed.

[19] Section 115(2) establishes the Commission and subs(3) provides that the President "acts on the advice of the Commission". The Constitution therefore provides a possible remedy for the injustice suffered by the petitioner and his co-offender Eparama Mani. On the other hand it cannot provide any remedy for what may be the justified sense of grievance of the public that the administration of the court system, and the Office of the Director of Public Prosecutions could produce such a regrettable shambles. We wish to make it quite clear that we do not intend or imply any criticism of the High Court judges involved, or of any individual in the Director’s office. The failure in each case lies in the systems which allow this state of affairs to occur.

[20] In cases where all co-offenders are sentenced in the Magistrate’s Court the problems which have occurred in this case might be avoided or mitigated if a prisoner’s notice of appeal to the High Court had to identify any co-accused who had been sentenced or were awaiting sentence in the Magistrate’s Court, or were awaiting trial in the High Court.

[21] In the result the Court has no option but to dismiss the petition.

Hon. Justice Keith Mason
Judge of the Supreme Court

Hon. Justice Kenneth Handley
Judge of the Supreme Court

Hon. Justice Ronald Sackville
Judge of the Supreme Court

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