Nawalu v State [2013] FJSC 11; CAV0012.12 (28 August 2013)

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IN THE SUPREME COURT OF FIJI
ON APPEAL FROM THE COURT OF APPEAL
Appellate Jurisdiction
At Suva

CRIMINAL APPEAL NO. CAV0012/2012
[On appeal from Court of Appeal, Criminal Appeal
No. AAU0017/11]

Coram: The Hon Chief Justice Anthony Gates, President of the Supreme Court
The Hon Mr Justice Saleem Marsoof, Justice of the Supreme Court
The Hon Mr Justice Sathyaa Hettige, Justice of the Supreme Court

Counsel: Mr Seremaia Waqainabete for the Petitioner
Mr M. Korovou for the Respondent

Date of Hearing: Friday 16th August 2013, Suva
Date of Judgment: Wednesday 28th August 2013

[1] For a spate of shop breakings and robberies with violence, the Petitioner now faces a head sentence of 13 years imprisonment. In essence his petition seeks a reduction of that term.

[2] However the petition and argument must address the lower court's decision and demonstrate that it was incorrect. In this case the decision to be impugned delivered on 2nd November 2012 is the decision of the single judge of the Court of Appeal who declined to grant leave to appeal out of time. This procedure has not been followed in this case.

[3] According to the Court of Appeal's decision the Petitioner had applied for leave out of time to appeal the decision of Madigan J in the Lautoka High Court. The High Court in turn had been hearing the Petitioner's appeal from the Nadi Magistrates Court wherein the Petitioner had claimed that his sentence had been "harsh and excessive". The High Court handed down its decision on 3rd December 2009 reducing the overall term from 15 years to 13 years. The Petitioner filed his Notice of Appeal with the Court of Appeal on 16th February 2011. He was, said the single judge, "approximately 1 year 1 month out of time". By virtue of section 26 of the Court of Appeal Act Cap. 12 the Notice of Appeal should have been given within 30 days of the decision challenged.

[4] Section 35(1)(b) of the Act empowers the Court of Appeal to extend time within which a notice of appeal may be given. Strictly speaking all such applications under the Rules should be in Form 6 of the 2nd Schedule to the Rules. With unrepresented appellants the appellate courts have not insisted on a strict application of the Rules.

[5] In applications for enlargement of time an applicant for the indulgence of the court must satisfy the court on five matters. Those matters are:

(iv) If there has been substantial delay, have any of the grounds such merit that they will probably succeed?

[6] In his submissions to the single judge the Petitioner set out his grounds of appeal as follows:

"(i) That the Appellant was prejudiced through lack of legal representation and legal assistance.

(ii) That the Appellant struggled to get proper legal advice before submitting the grounds of appeal.

(iii) That through the lack of legal knowledge and understanding the Appellant failed to submit the appeal petition on time.

(iv) That immediately after getting and receiving legal advice from prison officers and fellow inmates and the appeal was lodged."

[7] The reasons given were inadequate. The Petitioner has known all along that his complaint is one of severity and harshness of his sentence of imprisonment. A broad complaint of that nature would suffice to initiate an appeal and he needs little help in making such an allegation in regard to sentence.

"The practice is that, if any reasonable explanation is forthcoming, and if the delay is, relatively, slight, say for a few days or even a week or two, the Court will readily extend the time, provided that there is a question which justifies serious consideration."

In Julien Miller v The State AAU0076/07 (23rd October 2007) Byrne J considered 3 months in a criminal matter a delay period which could be considered reasonable to justify the court granting leave. The appellant in that case was 11½ months late and leave was refused. For an incarcerated unrepresented Appellant up to 3 months might persuade a court to consider granting leave if other factors are in the Appellant's favour.

[9] The delay in making the appeal here was very lengthy, and one not normally to be overlooked. Finality is important in all litigation. There must therefore be compelling grounds of appeal to allow an appeal as late as this to go forward.

[10] The Petitioner had submitted to the single judge "that the sentence of 13 years is indeed harsh, excessive and wrong in principle". The harshness and excessive nature of a sentence will not often be considered by the Supreme Court, as opposed to the Court of Appeal. For quantum of sentence is unlikely to meet the requirements for special leave in relation to a criminal matter that of the court being satisfied that a substantial and grave injustice may otherwise occur [section 7(2)(c) of Supreme Court Act 1998].

[11] There were 16 offences here in 8 separate court files. They included offences of shop breaking and larceny, burglary, office breaking, unlawful use of a vehicle, and robbery with violence.

[12] In the High Court Madigan J disposed of the appeal against the learned Magistrate's order in this way:

" 9) ...... Although the offences display a whole catalogue of violent and rapacious behaviour within a 2 month period (January and February 2009) a total sentence of 14 years is extremely harsh and provides the convict with no hope of a future crime free life. He demonstrated remorse and contrition before me and he appears to have done so too before the Magistrate. He tells me that he has a 3 month old baby, a child obviously born after this spree of violence and theft.

10) In the circumstances I would allow the appeal to the extent that the total sentence is reduced to 14 years to fit the maximum in the power of the Magistrate and I would allow one further year to reflect his remorse and his hope of a life with his new young family. The total sentence he must serve is now 13 years..."

[13] In sentence matters the appellant has a restricted right of appeal after appealing a Magistrates Court decision to the High Court. Sections 22(1) and (1A) of the Court of Appeal Act provide as follows:

" ...22(1) Any party to an appeal from a magistrate's court to the High Court may appeal, under this Part, against the decision of the High Court in such appellate jurisdiction to the Court of Appeal on any ground of appeal which involves a question of law only;

(1A) 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 –

[14] It is clear that it was intended that any sentence appeal to the 2nd tier appellate court would only be on a question of law. It would have to be established that the sentence was not simply too much or too little, but was actually unlawful or that it was imposed "in consequence of an error of law".

[15] The single judge was clearly correct in finding that the Petitioner's appeal did not meet the requirements of section 22. The Petitioner had no right of appeal to the Court of Appeal and in consequence Temo JA as the single judge had no option but to refuse to enlarge time for appealing and to dismiss the appeal. His lordship went further and dismissed the appeal under section 35(2) of the Act, which then meant the proceedings in the Court of Appeal were terminated and the Appellant had no right to seek a referral of his appeal to the Full Court. It must be said that the ground put forward has no merit, and that there is some prejudice for the prosecution service and indeed the State in such a late appeal. That completes a consideration of the relevant factors for the grant of leave to appeal out of time.

[16] The Petitioner has now petitioned this court where his task would seem even more arduous.

"The individual sentences are lenient but the real question to be addressed is the question of totality of sentence with so many cases being sentenced together.

In the interest of totality the Magistrate reduced the 19 years 8 months by 4 years and 8 months to make a total sentence of 15 years."

[18] The Petitioner had pleaded guilty to each of the offences at the first opportunity. The Magistrate gave an appropriate discount of sentence to take these pleas into account. Indeed the highest individual sentence meted out by the Magistrate had been 4 years and 2 months. This he awarded in 9 of the cases.

[19] The Petitioner had been sentenced on 9th April 2009. These cases involved offences against the Penal Code. The Crimes Decree and the Sentencing and Penalties Decree only came into force on the 1st February 2010.

[20] By virtue of section 391(2) of the Crimes Decree when imposing sentences for any offence under the Penal Code which was committed prior to the commencement of the Decree the court shall apply the penalties prescribed for that offence by the Penal Code.

[21] However on an appeal in such circumstances, section 61(2)(b) of the Sentencing and Penalties Decree permits the appeal court to vary the original sentence and impose any sentence in accordance with the Decree. This is by way of a transitional provision.

[22] In the High Court the judge said the total sentence the Petitioner was to serve was to be 13 years. He did not say how that was to be apportioned between the various offences in view of the way the Magistrate had made some of the sentences he meted out consecutive to others. Some offences for instance, simple larceny and unlawful use of a motor vehicle, by law had maximum terms of imprisonment of 5 years [Larceny] and 6 months [Unlawful Use of a Vehicle]. The eventual term of 13 years could not be used for imposing sentences in regard to those offences.

[23] Section 17 of the Sentencing and Penalties Decree provided for the imposition of an aggregate sentence of imprisonment where the offender had been convicted of more than one offence founded on the same facts, or which formed a series of offences of the same or a similar character. However the aggregate terms must not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each one of the offences. The parameters of this new provision may have been overlooked in the final sentence modified as it was in the High Court.

[24] The transitional arrangements can give rise to difficulties for the sentencer. The following should be borne in mind.

[25] The Petitioner's counsel submitted that the High Court had not specifically ordered the sentences to be consecutive in compliance with section 22(1) of the Sentencing and Penalties Decree. Clearly the Magistrate in the lower court had done so and had stated which sentences were to take effect consecutively. His lordship had then adjusted the total effective sentence downwards from 15 years to 13 years. It was not necessary for the High Court to reiterate that part of the Magistrate's order namely the directions in relation to which sentences were to be consecutive and which were not being varied by the High Court.

[26] The difficulty with the aggregate sentence imposed by the High Court was that it exceeded the powers of the Magistrate if 13 years was then to be the applicable sentence for each of the robbery offences. If there were to be a reduction of the overall total of sentence, where was the reduction to be reflected? It is not clear. For record purposes, both for police and prisons, how was the tabulation of the sentences to reflect the 2 years reduction made by the High Court? There needed to be a reduction in one of the consecutive sentences or the term of one of the sentences, and this had to be clearly spelt out.

Gravity of spate of violent offending and Duty of the courts to protect people in
their homes or going about their business

[27] So far as the head sentence is concerned, the court finds 13 years to be within the range set by recent authority for serious violent crime such as robbery with violence. Here the outstanding factors triggering a high penalty in the range 10-16 years were the spate of offending, the gravity of the anti-social behaviour with its menace to persons and property, the invasion of home and privacy, the violence proffered, and the need for very strong disapproval of such behaviour. With this type of offending, personal mitigation of the kind raised by the Petitioner, that he is married and now has a small child, count for little.

[28] This approach and the tariff have been established in several cases: The State v Rokonabete HAC 118/07; The State v Rasaqio [2010] FJHC, HAC155/2007, Basa v The State [2006] FJCA 23; AAU0024/05, 24th March 2006. It was decided that the English cases were to be followed rather than the New Zealand cases since the English penalties were closer to those in Fiji's legislation.

[29] In Samuel Donald Singh v State Crim. AAU15 and 16 of 2011 Calanchini P in the Court of Appeal said:

"...there is ample authority in this Jurisdiction for concluding that the appropriate tariff for robbery with violence is now 10 to 16 years imprisonment. In selecting 10 years as a starting point the learned trial judge has started as the lower end of the range."

[30] Once seized of the case, under the Criminal Procedure Code the Magistrate could commit a case to the High Court for sentencing [section 222(1)]. However this committal was restricted to cases where "on obtaining information as to his character and antecedents, the Magistrate is of opinion that they are such that greater punishment should be inflicted than the Magistrate has power to inflict....." Here the Petitioner had only one previous conviction which did not meet the conditions of section 222. The Magistrate had to continue with the case. Section 190 of the Criminal Procedure Decree however is much wider and not limited to character and antecedents of the Accused. Committal under section 190 was not available to the sentencing Magistrate since it was not then in force. In future this section could be considered by a Magistrate faced with such a serious sentencing matter, and the matter could properly in these circumstances be referred to the High Court for sentence. The artificiality of making the sentence consecutive to another in order to arrive at suitably condign punishment for serious crime could be avoided.

Case No.	Offence	Original Sentence	Now Varied by SC
235/09	Shop Breaking & Larceny	18 mths	Concurrent
237/09	Larceny	18 mths	Concurrent
245/09	1. Burglary	10 mths (concurrent to 2)
	2. Robbery with Violence	4 yrs 2 mths	Concurrent
253/09	Shop Breaking, Entering & Larceny	10 mths	Concurrent
255/09	1. Robbery with Violence	4 yrs 2 mths
	2. Robbery with Violence	4 yrs 2 mths (concurrent)
	3. Unlawful Use of Vehicle	1 mth (concurrent)
257/09	1. Office Breaking, Entering & Larceny	18 mths	Concurrent
	2. Robbery with Violence	4 yrs 2 mths	4 yrs 4 mths
	3. Unlawful Use of Vehicle	1 mth (concurrent)
258/09	1. Robbery with Violence	4 yrs 2 mths	4 yrs 4 mths
	2. Robbery with Violence	4 yrs 2 mths (concurrent)
259/09	1. Robbery with Violence	4 yrs 2 mths	4 yrs 4 mths
	2. Robbery with Violence	4 yrs 2 mths (concurrent)
	3. Robbery with Violence	4 yrs 2 mths (concurrent)

The sentences on each count within that case No. will be concurrent with each other but case Nos. 255, 258, and 259 will be consecutive to each other. This brings the total term to be served by the Petitioner from the date of the Magistrate's sentence on 9/4/09 to 13 years imprisonment. The court has not changed the length of the total term to be served, only the manner in which that total is calculated and imposed for each offence.

...............................................
Hon Chief Justice Anthony Gates
President of the Supreme Court

...............................................
Hon Mr Justice Saleem Marsoof
Justice of the Supreme Court

..............................................
Hon Mr Justice Sathyaa Hettige
Justice of the Supreme Court

Solicitors for the Petitioner : Director, Legal Aid Commission, Suva
Solicitors for the Respondent : Director of Public Prosecutions, Suva

Supreme Court of Fiji

Nawalu v State [2013] FJSC 11; CAV0012.12 (28 August 2013)