Donu v State [2015] FJSC 19; CAV0014.2014 (20 August 2015)

IN THE SUPREME COURT OF FIJI
APPELLATE CRIMINAL JURISDICTION

Criminal Petition No. CAV 0014 Of 2014
(On appeal from Court of Appeal No. AAU 0038 of 2011)

BETWEEN:

KAMINIELI DONU
Petitioner

AND:

THE STATE
Respondent

CORAM : Hon. Chief Justice Anthony Gates, President of the Supreme Court

Hon. Madam Justice Chandra Ekanayake, Judge of the Supreme Court
Hon. Justice William Calanchini, Judge of the Supreme Court

COUNSEL : Petitioner in Person
Ms. P. Madanavosa for the Respondent

Date of Hearing : 6 August 2015
Date of Judgment : 20 August 2015

JUDGMENT OF THE COURT

Gates, P

I concur with the reasons and judgment of Ekanayake J, and approve the orders proposed.
Chandra Ekanayake JA

Introduction

1. The petitioner, Kaminieli Donu, by his document titled - "Re: Appeal to the Supreme Court from decision of the Single Judge of Appeal under Section 35(2) of the Court of Appeal" dated 02/05/2014, (which appears to have been received by this Court on 12/5/2014) has submitted 2 grounds of appeal. Further he has stated that he will add further grounds of appeal when the Court record is provided.
   
2. The 2 grounds of appeal enumerated therein are reproduced below:-
   
   1. The Justice of Appeal erred in law when he did not analyse the decision of High Court properly;
      
   2. The Learned Judge of Appeal did not evaluate the decision of the Appellate Judge properly before invoking Section 35(2) of the Court of Appeal.
      
3. The petitioner was charged in the Magistrate's Court at Lautoka on the following charges:
   

CHARGE

(Complaint by Public Officer)

FIRST COUNT

Statement of Offence (a)

ROBBERY WITH VIOLENCE: Contrary to Section 293(1) (b) of the Penal Code, Cap 17.

Particulars of Offence (b)

KAMINIELI DONU with others on the 13th day of December, 2008 at Lautoka in the Western Division robbed one JAI GAWANDER s/o S.A. GAWANDER of one Lenovo Laptop valued $5000.00, US$1000.00, $500 cash and a Nokia Mobile phone valued $80.00 all to the total value of $6,580.00 immediately before the time of such robbery did use personal violence to the said JAI GAWANDER s/o S.A.GAWANDER.

SECOND COUNT

Statement of Offence (a)

BURGLARY: Contrary to Section 299 of the Penal Code, Cap 17.

Particulars of Offence (b)

KAMINIELI DONU with others on the 14th day of December, 2008 at Lautoka in the Western Division did break and enter the dwelling house of JAI GAWANDER s/o S.A. GAWANDER with intent to commit felony namely Larceny.

THIRD COUNT

Statement of Offence (a)

LARCENY FROM DWELLING HOUSE OF PROPERTY AMOUNTING NOT LESS THAN $10.00: [Contrary to Section 270 of the Penal Code, Cap 17]

Particulars of Offence (b)

KAMINIELI DONU with others on 14th day of December 2008, at Lautoka in the WESTERN DIVISION stole from the dwelling house of JAI GAWANDER s/o S.A GAWANDER, $350.00 cash, one gold plated ring valued $25.00 and one bottle red label valued $80.00 all to the total valued of $455.00 the property of JAI GAWANDER s/o S.A.GAWANDER.

FOURTH COUNT

Statement of Offence (a)

UNLAWFUL USE OF MOTOR VEHICLE:[Contrary to Section 292 of the Penal Code, Cap 17]

Particulars of Offence (b)

KAMINIELI DONU with others on 14th day of December 2008, at Lautoka in the WESTERN DIVISION, unlawfully and without colour of right but not so as to be guilty of stealing took to their own use motor registration number EF599 the property of JAI GAWANDER s/o S.A.GAWANDER.

4. He was convicted by the Magistrate on his guilty pleas and sentenced as follows:-
   
   1. First count - 5 years and 6 months imprisonment
   2. Second count – 2 years and 3 months imprisonment
   3. Third count – 21 months imprisonment
   4. Fourth count – 100 dollars fine and in default 10 days imprisonment

The above sentences to be served consecutively.

The Magistrate further proceeded to fix the non parole term at 7 years.

5. The petitioner appealed to the High Court under Criminal Appeal No. HAA 027 of 2010 against the sentence imposed by the Magistrate. The learned High Court Judge by his judgment dated 11/03/2011 ordered that the petitioner's total sentence to be served will be one of 8 years and 8 months dating from 9/6/2010, which being the date of pronouncement of the sentencing order. As per paragraph 25 of his judgment in recognition of the undue length of process due to many changes of Magistrates along the way, appellant was allowed to serve a minimum of 6 years before being eligible for parole.
   

6. Being aggrieved by the above judgment of the High Court, the petitioner preferred an appeal to the Court of Appeal against sentence on 12/4/2011:

7. The single Justice of the Court of Appeal by his impugned judgment dated 21/2/2014 had dismissed the appeal of the petitioner under Section 35(2) of the Court of Appeal Act mainly on the following grounds:-

(a) the petitioner had failed to satisfy that the sentence imposed on him by the High Court was either unlawful or passed in consequence of an error of law.

(b ) the petitioner has no right of appeal and as such his appeal against sentence

should fail.

8. Petitioner's document received by this Court on 12/5/2014 was treated as an application seeking special leave to appeal out of time. At the listed hearing before this Court petitioner submitted that he was totally relying on the written submissions filed by him.

Proceedings Before the Court of Appeal

9. By the sentencing order of the learned Magistrate pronounced on 9/6/2010 the Petitioner was sentenced as stated in paragraph 4 above.
   
10. In terms of paragraph 12 of the said order sentence to be served consecutively for the reasons stated therein. For ease of reference the aforesaid paragraph 12 is reproduced below:-
    

"The court has a duty to impose deterrent sentences in violent and brutal offences of this nature to ensure the protection of the members of the society. Thus I am compelled to order the sentences to be served by you consecutively."

11. The petitioner appealed against sentence to the High Court in Lautoka No. HAA 27/10L, submitting the following for consideration by court:
    

"The appellant submits that as the offences were committed in December 2008, the Magistrate was in error in imposing a non-parole period as prescribed by the Sentencing and Penalties Decree 2009 which came into effect on 1st February 2010,

Secondly, the appellant submits that no allowance was afforded to him for time spent in remand and for his guilty pleas,

The sentences should not have been made consecutive; that as they all arose out of the same incident, they should have been made concurrent."

12. By the judgment of the learned High Court Judge dated 11/3/2011 the petitioner was sentenced afresh as follows:-
    
    1. 1st count - robbery with violence - 6 years imprisonment
    2. 2nd count - burglary –2 years and 8 months imprisonment
    3. 3rd count – larceny from dwelling house – 12 months imprisonment
    4. 4th count – unlawful use of motor vehicle – 2 months
       

Sentences for the 2nd to 4th count to run concurrently. Total sentence to be 8 years and 8 months dating from 9/6/2010 and a minimum term of 6 years was ordered before being eligible for parole.

13. Being aggrieved by the sentence imposed by the High Court, the petitioner preferred a timely appeal to the Court of Appeal of Fiji under Criminal Appeal No. AAU 0038 /2011 alleging 4 main grounds of law which could be summarised as follows:-
    
    1. That the Learned Magistrate and Appeal Judge of the High Court erred in imposing a non-parole period as prescribed by the Sentence and Penalties Decree 2009 when in fact I was charged under the Penal Code and should be sentenced according to the Penal Code,
       
    2. That proper credit was not accorded to the time spent in custody on remand in relation to the charges and for his guilty pleas,
       
    3. That the sentence in relation to burglary, larceny from dwelling house and unlawful use of motor-vehicle should be made concurrent to the charge of robbery with violence.
       
    4. That the mitigating features such as a first offence and young age was not taken into consideration,
       
14. The learned Justice of the Court of Appeal by his judgment dated 21/2/2014 dismissed the appeal under section 35(2) of the Court of Appeal Act on the basis that the petitioner had failed to satisfy that the sentence imposed on him by the High court is either unlawful or was passed in consequence of an error of law.
    

Special Leave to Appeal

15. It is amply clear that the jurisdiction of the Supreme Court with respect to special
leave to appeal is embodied in Section 7 of the Supreme Court Act No. 14 of 1998.

"Section 7(1) of the Supreme Court Act No. 14 of 1998 provides as follows:-

In exercise of its jurisdiction under Article 122 of the Constitution [see new Section 98 of Constitution 2013] with respect to Special Leave to Appeal in any civil or criminal matter, the Supreme Court may, having regard to the circumstances of the case –

(a) refuse to grant special leave to appeal

(b) grant special leave and dismiss the appeal or instead of dismissing make such orders as the circumstances of the case require; or

(c) grant special leave and allow the appeal make such other orders as the circumstances of the case require".

Section 7(2) thereof sets out 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.

Section 7(3)..."

16. A plain reading of the above Section 7(2) which relates to criminal matters would show that the Supreme Court must not grant special leave to appeal in a criminal matter unless the court is satisfied that a question of general legal importance is involved, or a substantial question of principle affecting the administration of criminal justice is involved or substantial and grave injustice may otherwise occur.

17. Further I am mindful of the observations made by this court in Dip Chand v State; CAV 004 of 2010 (9th May 2012) to the following effect:

"...Given that the criteria is set out in Section 7(2) of the Supreme Court Act No. 14 of 1998 are extremely stringent, and special leave to appeal is not granted as a matter of course...".

Enlargement of Time

18. To determine whether the interests of justice requires allowing extension of time, certain factors have to be examined. Those factors as laid down in the case of Kamlesh Kumar v The State; Criminal Appeal No. CAV 001/2009; by His Lordship the Chief Justice, Gates, P 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 court's 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?
      
19. Time and again Fiji Supreme Court has decided that if the delay is a very short one generally the discretion of the court could be exercised in favour of the petitioner. In enlargement applications the length of the delay has been extensively dealt with, in some of the recent Fiji Supreme Court decisions. In the case of Eddie McCaig v Abhi Manu; CBV 002/2012 (27th August 2012); Gates, P observed as follows:
    

"[22] The delay here was very short, a mere 2 days. In C M Stillevoldt BV v EL Carriers (1983) 1 WLR 207 it was 2 weeks, and the discretion was exercised in favour of the appellant. In Palata it was 3 days and Ackner CJ said at p.521b;

...."we expressed the opinion that, in cases where the delay was very short and there was an acceptable excuse for the delay, as a general rule the appellant should not be deprived of his right of appeal and so no question of the merits of the appeal will arise. We wish to emphasise that the discretion which fell to be exercised is unfettered, and should be exercised flexibly with regard to the facts of the particular case."

20. The above observations were made in enlargement of time applicatons in civil cases. However if the delay was very short and if the petitioner has been successful in offering any reasonable or acceptable explanation such a petitioner should not be deprived of his right to appeal.
    
21. In the aforecited case of Kamlesh Kumar His Lordship Gates P, cited with approval the

principles enunciated in Viliame Cavubati; AAU 0022.03S and made the following observations:

"The rights of appeal are granted by statute within a framework of Rules. Enlargement normally can be granted because of specific powers granted to the appellate courts. No doubt because of a need to bring litigation to finality, once there is non-compliance, the court can only exercise a limited discretion (paragraph 7 of the Kamlesh Kumar case).''

22. In this case the application for special leave to appeal had been filed about 38 days outside the statutory period of 42 days spelt out in Rule 6 (a) of the Supreme Court Rules of 1998.

The petitioner has totally failed to submit any explanation with regard to the delay in filing the same. However, it is observed that he had been serving in prison. At this juncture the Court is mindful of the principles enunciated in R v Albert Sunderland [1927] 2SR (NSW) 26; which also being a case involving consideration of an application for enlargement of time after conviction, which were to the following effect:-

"(1) that want of means was not a sufficient ground on which to base the application, and

(2) that in view of the delay in applying "very exceptional circumstances would have to be established before the court would be justified in granting the application."

23. The length of the delay here is about 1 month and 8 days. Certainly it is not a delay of 6,7 days. Even if the length of the delay was a very short one still there should be satisfactory reasons to explain the delay. In this context the observations made by Court in Edwin Rhodes [1910] 5 Cr.App.R35 at p36. would become relevant. This too being a case where extension of time for leave to appeal was considered the following observation was made:
    

"A short delay may be disregarded by the court if it thinks fit, but where a substantial interval of time – a month or more – elapses, that it must not be taken for granted that an extension of time will be allowed as a matter of course without satisfactory reasons."

24. On the material available this court concludes that the petitioner has totally failed to offer any reason with regard to his failure to file the application within time.
    
25. I shall now advert to consider whether there is any ground of merit justifying the Appellate court's consideration.
    
26. His 1st ground of appeal to the Court of Appeal was that non-parole period of sentence as prescribed by the Sentencing and Penalties Decree of 2009 is not applicable to his case when in fact he was charged under the Penal Code and he should have been sentenced according to the Penal Code. Section 61(1) of the Sentencing and Penalties Decree of 2009 being a transitional provision reads thus:-
    

"61. (1) A court hearing any proceeding for an offence which was commenced prior to the commencement of this Decree shall apply the provisions of this Decree if no sentence has been imposed on the offender prior to the commencement of this Decree."

27. From a plain reading of the above section it is manifestly clear that the Magistrate had every right to impose a minimum term on the petitioner. This Decree commenced on 1/2/2010. The proceedings in this case had commenced prior to that date and no sentence was also imposed prior to that date. Thus this ground lacks merit.
    
28. The petitioner cannot claim the benefit of the ground enumerated in paragraph 13(ii) above for the reason that the learned High Court Judge whilst referring to the discount of three months given by the Magistrate has even commented that the period the petitioner had been on remand for this case was a very short period.
    
29. With regard to the ground of appeal based on non-consideration of guilty pleas I wish to reproduce the relevant paragraph 18 of the learned High Court Judge's judgment:-
    

"As the appellant has been unduly penalised and as he has not being given credit for his pleas of guilty, I propose to use my powers under section 256(3) of the Criminal Procedure Decree to quash the sentence passed below and sentence the appellant afresh".

30. Further at paragraph 16 of his judgment he had observed that the Magistrate in his sentencing order had unduly punished the petitioner by applying the same aggravating "top up" to all his convictions and same is unjust. Thereafter he had picked the most serious offence as the 'base sentence' and adopted to make adjustments for aggravation and mitigation. He has further stated that the other sentences for lesser crimes can then be absorbed into that base sentence and make concurrent to achieve the result. As the appellant has been unduly penalised and further no credit was accorded to his guilty pleas, the learned High Court Judge has used his powers under Section 256(3) of the Criminal Procedure Decree and quashed the sentence passed by the Magistrate and proceeded to sentence the petitioner afresh.
    
31. A careful scrutiny of the learned High Court Judge's fresh sentencing order reveals that he had taken into account the aggravating factors, period spent on remand, petitioner's guilty pleas, and he being a first offender. He had added 2 years to the sentences bringing it up to 9 years having accepted the Magistrate's finding of aggravations namely, that the offence was planned, there were more than one robber, dangerous weapons were used and the petitioner having committed the offence whilst on bail for another offence. For his guilty pleas and short time in remand (for the above offence), 3 years had been deducted when fixing the sentence for the first count at 6 years.
    
32. When considering the sentences imposed on 2nd to 4th counts the learned High Court Judge having carefully considered that the petitioner was one of a gang who burgled the home of the victim of the previous night's robbery and also the aggravated circumstances, had affirmed the Magistrate's starting point for the second count which was 2 years and 6 months. Thereafter he had proceeded to add 18 months bringing the sentence to 4 years. Further his guilty plea had reduced the sentence to 2 years and 8 months.
    
33. The learned High Court Judge having adopted the Magistrate's starting point of 18 months

to the third count, had reduced the same to 12 months to reflect the guilty plea. For the 4th count – unlawful use of motor vehicle, the petitioner was sentenced to 2 months imprisonment.

34. Now what is left for consideration is the ground of appeal spelt out in paragraph 13(iii) above namely; the sentences in relation to burglary, larceny from dwelling house and unlawful use of motor vehicle should have been made concurrent to the sentence of robbery with violence. The learned High Court Judge in paragraph 23 of his judgment has given cogent reasons why the sentence for the first count should stand apart from the burglary offence (2nd count). I opt to reproduce the aforesaid paragraph 23 of his judgment:
    

"The sentences for burglary, larceny and misuse of a motor vehicle are to be all served concurrently, however I do find force in the Magistrate's argument that a deterrent sentence is necessary to endeavour to protect society from crimes of violence. For those reasons the sentence for the robbery will stand apart from the burglary offences (which were committed on another distinct occasion) which means the appellant's total sentence to be served will be one of eight years and eight months dating from the 9th June 2010".

For the above reasons the learned High Court Judge had fixed a total sentence of 8 years and 8 months dating from 9/6/2010 which being the pronouncement date of Magistrate's sentencing order. In recognition of the undue length of process due to many changes of Magistrates along the way, the High Court Judge had fixed a minimum term of 6 years before being eligible for parole.

35. However I wish to consider if time is enlarged in this case will the respondent be unfairly prejudiced? For the reasons already enumerated above the petitioner has failed to offer any acceptable, reasonable explanation for the delay. Further no meritorious ground exists which demands appellate court's consideration. As such if time is enlarged the respondent will be prejudiced.
    
36. The learned Justice of the Court of Appeal by his impugned judgment has affirmed the reasoning given and the sentences imposed by the learned High Court Judge in his fresh sentencing order. Further I am inclined to agree with his decision that the petitioner has failed to satisfy the sentence imposed on him by the High Court is either unlawful or was passed in consequence of an error of law. Viewed in the above context, I am satisfied that there are no grounds of merit justifying the appellate court's consideration and also no meritorious grounds in existence demanding that consideration .
    
37. For the above reasons the Court is therefore of the view that the application for enlargement of time lacks merit and same is hereby refused. The judgment of the Court of Appeal dated 21/02/14 is hereby affirmed.
    

Calanchini JA
I agree with the judgment of Ekanayake JA.

The Orders of the Court:

1. Petitioner's application for enlargement of time is refused.
2. Special leave to appeal is also refused.
3. The judgment of the Court of Appeal dated 21/2/14 is affirmed.
4. Convictions affirmed. The sentences imposed by the learned High Court Judge by his judgment dated 11/03/2011 are also affirmed.
   

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

......................................................
Hon. Justice Chandra Ekanayake
Justice of the Supreme Court

.......................................................
Hon. Justice William Calanchini
Justice of the Supreme Court

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