Kean v State [2015] FJSC 27; CAV0007.2015 (23 October 2015)

IN THE SUPREME COURT OF FIJI
AT SUVA
[CRIMINAL APPELLATE JURISDICTION]

Criminal Petition No. CAV 0007 of 2015
(Criminal Appeal No. AAU 0095/2008)

BETWEEN:

GUSTON FREDRICK KEAN
PETITIONER

AND:

THE STATE
RESPONDENT

CORAM : Hon. Mr. Justice Saleem Marsoof, Justice of the Supreme Court
Hon. Mr. Justice Brian Keith, Justice of the Supreme Court
Hon. Mr. Justice Priyasath Dep, Justice of the Supreme Court

COUNSEL : Mr. J. Savou for the Petitioner
Mr. M. Delaney for the Respondent

Date of Hearing : 8 & 14 October 2015
Date of Judgment : 23 October 2015

JUDGMENT OF THE COURT

Marsoof, JA

1. I agree with the reasoning and conclusions of Keith JA.
   

Keith, JA
Introduction

2. The petitioner, Guston Frederick Kean, has become a fertile source of work for the Supreme Court over the years. He has in the past asked the Supreme Court to overturn his conviction for a robbery he was supposed to have committed in September 2005, as well as a conviction for resisting arrest in February 2007. He was unsuccessful on both occasions. He is now before the Supreme Court again – this time seeking to overturn his conviction for a robbery in which he was supposed to have taken part in July 2007. Although he was represented by counsel at the hearing before us, he addressed us himself in support of some of his grounds of appeal. He is plainly a man of intelligence, and if I may say so, a man of some personal charm as well. I wish to pay tribute to the courtesy he showed to us and to the moderation with which he presented his case. I trust that he will forgive me if from now on I refer to him by his family name for convenience.
   

The facts

3. In the light of the issues which Kean's petition raises, it is unnecessary to set out the facts in any detail. In short, the prosecution's case was that at about 5.00 pm on Saturday 7 July 2007 a number of men wearing masks stormed into a supermarket in Tamavua. They were armed with knives, beer bottles and a pinch bar. The supermarket was full of customers at the time, mostly women and children. The men began to smash the bottles in the area where the cashiers were, and told staff and customers alike to get down. They eventually made off with a number of cash register tills containing over $21,000 in cash. Some of the customers had cash and personal effects such as mobile phones and jewellery stolen from them. None of this was seriously disputed at the trial of Kean and his co-defendants. The issue was whether they had been the culprits. They all claimed that they had not been, and that they had been elsewhere at the time of the robbery.
   

The course of the proceedings

4. The trial. The charge on which Kean and his co-defendants were tried was one of robbery with violence contrary to section 293(1)(b) of the Penal Code. None of them were legally represented, and they represented themselves. They all pleaded not guilty. The trial began on 30 July 2008. The evidence against them was based substantially, if not exclusively, on the confessions they were alleged to have made. All four defendants challenged the admissibility of their alleged confessions, and since their admissibility depended on facts which were in dispute, the trial judge held a voir dire.
   
5. The prosecution's case in the voir dire was that the defendants had voluntarily confessed to their involvement in the robbery both when interviewed under caution and when charged. They had willingly signed the records of both their interviews and of what they had said when they had been charged to acknowledge that the contents of those records were correct. The defendants' case was that they had not confessed to anything, that the accounts of what they were supposed to have said had been fabricated, that they had been ill-treated and beaten up by the police, and it was that which had caused them to acknowledge that the records were accurate when they were not. There was a second issue which the voir dire addressed. The prosecution was not able to produce the originals of the records of the defendants' interviews. It could only produce photocopies of them. The defendants argued that the prosecution should not be allowed to do that.
   
6. At the conclusion of the voir dire, the judge ruled that the confessions were admissible and that photocopies of them could be produced. The trial then proceeded in the presence of the assessors. In due course, a majority of the assessors expressed the opinion that the four defendants were guilty. The judge gave judgment convicting them. They were sentenced on 15 September 2008. Kean was sentenced to 14 years' imprisonment, five years of which were to be served concurrently with an existing sentence of 11 years' imprisonment, which meant that Kean would have to serve a total of 20 years' imprisonment in respect of what had become by then convictions for a total of four offences of robbery with violence. The judge did not impose a minimum term.
   

7. The appeal to the Court of Appeal. All four defendants applied to the Court of Appeal for leave to appeal against their conviction. Two of them, one of whom was Kean, also applied for leave to appeal against sentence. Kean's application for leave to appeal against conviction and sentence was considered by a single judge of the Court of Appeal. On 13 October 2009, he granted Kean leave to appeal against conviction on three particular grounds, and gave him leave to appeal against sentence as well. Kean's appeal was heard by the Full Court (Calanchini P, Chandra JA and Temo JA) on 16 September 2013. Kean was still representing himself. Judgment was handed down on 13 November 2013. The leading judgment was that of Calanchini P. Kean's appeal against conviction was dismissed, but his appeal against sentence was allowed. The Court of Appeal directed that the term of 14 years' imprisonment for the latest offence of robbery with violence should be served concurrently with his existing sentences with a non-parole period of 13 years' imprisonment.

8. The petition for special leave to appeal to the Supreme Court. Kean applied for special leave to appeal to the Supreme Court against his conviction and sentence. I shall refer to the document by which he first sought to do that as the petition. It is not dated, but it was lodged in the Registry on 4 March 2015. Since petitions for special leave to appeal to the Supreme Court have to be lodged within 42 days of the date of the judgment appealed from, it was more than 14 months out of time. It purported to be a "fresh application" setting out "amended" grounds of appeal, implying that a previous petition had been lodged. But we have looked at the file kept by the Registry, and it is apparent that this was the first document Kean had lodged seeking to challenge the Court of Appeal's decision.

9. No explanation for the delay has been offered, and on any view the length of the delay was substantial. On the other hand, there is no suggestion that the prosecution would be unfairly prejudiced if Kean's time for lodging his petition was enlarged. So the real question on which the application for an enlargement of time is likely to turn is whether, to use the well-known language of Kumar v The State [2012] FJSC 17 at [4], "there is a ground of appeal that will probably succeed".
   

10. The hearing in the Supreme Court. On 11 August 2015, Kean lodged amended grounds of appeal. The document recorded that he was abandoning all his previous grounds of appeal and that they should be disregarded. Indeed, by the time of the hearing in the Supreme Court, Kean had been granted legal aid, and his counsel, Mr. Jeremaia Savou, told us that the only grounds to be relied on were those in the document lodged on 11 August 2015. That came as a surprise to us as in his original petition Kean had made much of the fact that an application for an adjournment which he had made on the first day of the trial had been refused. When we inquired whether Kean was intending to abandon that ground of appeal as well, we were told that he was not. That was one of the three grounds of appeal on which Kean addressed us himself. This is the court's judgment following that hearing.

The grounds of appeal against conviction

11. Ground 1: The appointment of the trial judge. In this ground of appeal, it is contended that the appointment of the trial judge had been invalid because it had been made at a time when the legitimate government of Fiji had been overthrown and an interim government of questionable constitutionality was in place. No point was taken about the validity of the trial judge's appointment either at first instance or in the Court of Appeal. It was not even in the petition. It emerged for the first time in Kean's amended grounds of appeal, and even then the page where we assume this argument was developed is missing.

12. Mr. Savou did not feel able to argue this ground. In his view, the ground was without merit. So if it was to be pursued, it had to be argued by Kean himself. When we asked Kean if he was abandoning this ground in the light of Mr. Savou's view as to its prospects of success, he said that he was not. So this was the first ground of appeal which Kean argued himself, but he did not develop the argument in a significant way.

13. We assume that the trial judge was purportedly appointed by the President of Fiji on the recommendation of the Judicial Services Commission, but if it had been necessary for us to consider whether that purported appointment was valid, we would have had to embark on a survey of Fiji's recent political and constitutional history which the absence of any submissions on the issue would have left us totally unprepared to do. In the event, though, we do not think that it is necessary for us to do that. The position of a judge who is alleged not to have been validly appointed was considered relatively recently by the Court of Appeal in England in Coppard v HM Customs and Excise [2003] EWCA 511 (Civ). A judge who has not been validly appointed is not a judge in law, but he can nevertheless be treated as a judge who has been validly appointed if he was "reputed" to have been validly appointed, ie if he was believed by everyone to be a validly appointed judge, and if he had no reason himself to believe that he had not been validly appointed. He will not have been a judge in law, but he will have been a judge in fact. It is not suggested that the trial judge – or anyone else for that matter – believed at the time that he had not been validly appointed. In the circumstances, the validity of his appointment cannot be impeached for present purposes, and this ground of appeal must fail.

14. Ground 2: The use of photocopies. In this ground of appeal, Kean challenges one of the findings which the judge made in the voir dire which resulted in him ruling that photocopies of the records of the defendants' interviews could be produced. The law in this area is settled. Three things must be established beyond reasonable doubt if a copy of a document is to be produced in a criminal trial in place of the original:

(i) The original of the document would have been admissible in evidence.

(ii) The original must have existed at one time. It has to have been either lost or destroyed at some stage. Its whereabouts when it had been lost or destroyed have to be known. And if it has been lost, a due and diligent search has to have been made for it without success.

(iii) The copy has to have been a true and faithful reproduction of the original, and how it had come to be made and to be in the hands of the person who produced it in evidence has to be apparent.

That is the effect of R v Lobendahn (1972) 12 FLR 1, which has been applied frequently since then in a number of cases including Drodroveivali v The State (AAU0019 of 2003). The argument advanced on Kean's behalf is that the evidence before the trial judge had been insufficient to establish that a due and diligent search for the missing records had been made, and that that is what the Court of Appeal should have found.

15. The evidence on this topic came from Cpl Ana Vuniwaqa. The trial judge summarised her evidence in his ruling as follows:

"The State called Cpl Ana Vuniwaqa. Cpl Ana said in July 2007 she was based at Samabula Police Station. She provided administrative support for the Strike Back Unit. She typed and photocopied the hand recorded caution statements of the accused persons. She photocopied the statements from the originals and placed them in a folder. The originals were kept by the investigating officer who currently is on an overseas mission. She searched for the originals but could not locate them. She conducted her search in the exhibit room and the lockers at the Samabula Police Station. Constable Maria assisted her to search for the documents. The originals are missing."

16. The contention is that there were other places where Cpl Vuniwaqa could have looked for the missing documents. If the investigating officer had had his own office, she should have looked for the documents there. If he had not had his own office, but had had only his own desk or work space, she should have looked for the documents there. The difficulty with all this, though, is that it assumes that when Cpl Vuniwaqa said that she had looked for the documents in the exhibits room and the lockers, they were the only places where she had looked for them. She may simply have been giving examples of some of the places where she had looked for them. Moreover, if it was to be suggested that there were other places where Cpl Vuniwaqa could have looked for the missing documents, that should have been put to her in cross-examination. If the court record is anything to go by, she was not asked anything about that. In my view, it was reasonably open on the evidence for the trial judge to conclude that a due and diligent search had been made for the missing documents, and I do not think that the Court of Appeal erred in concluding that the judge's ruling on the topic had been free of error.

17. The argument that the trial judge had been wrong to conclude that a due and diligent search for the missing documents had been made was not how the ground of appeal had been put in the amended grounds of appeal. There the argument was that the Court of Appeal had erred in holding that independent verification of how the photocopies had come to be made had not been required. That was a reference to the passage in Calanchini P's judgment where he said that the prosecution had not been required to lead evidence corroborating the evidence of Cpl Vuniwaqa in order for the photocopies to be admissible. Calanchini P was unquestionably correct. Corroboration of someone's evidence is required in certain well-defined circumstances. This was not one of them.

18. Ground 3: The absence of a warning to the assessors. In McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468, the High Court of Australia held that "[whenever police evidence of a confessional statement allegedly made by an accused while in police custody is disputed and its making is not reliably corroborated, the judge should, as a rule of practice, warn the jury of the danger of convicting on the basis of that evidence alone". That comes from the headnote, and is an accurate distillation of what the majority of the court held. But it was a close-run thing. Three of the seven judges dissented, and a different view has been taken in other jurisdictions. Indeed, as Calanchini P observed at [41] in his judgment in the present case, there is no such rule of practice in Fiji. In this ground of appeal, it is asserted that the majority view in McKinney should be adopted in Fiji. The trial judge did not give the assessors a warning of the kind regarded as appropriate by the majority of the court in McKinney, and he is said to have erred in that respect.

19. Although this was the assertion advanced by Kean in his amended grounds of appeal, it is not being advanced by Mr. Savou on his behalf. His written submissions are silent on the issue. Moreover, in his own written submissions on behalf of the State, Mr. Mosese Korovou did little more than adopt Calanchini P's conclusion that the majority view in McKinney should not be adopted in Fiji. It is unsatisfactory for a final appellate court to have to determine an important issue of principle without the benefit of full, let alone any, argument, but we have to do the best we can in the circumstances.

20. The rationale for giving a warning to assessors about the dangers inherent in convicting a defendant on evidence which was not independently corroborated is that without such a warning the dangers might not be obvious to them. It is therefore necessary to spell the danger out. There are unquestionably some areas where a warning of that kind has been thought to be required – for example, where the witness was an accomplice or a complainant in a case of a sexual nature or very young. The justification for that has been that such witnesses may not be as reliable as witnesses in other categories of witness, either because they might have their own interests to serve, or because their comprehension of events may be imperfect. As Lord Ackner said in R v Spencer [1987] UKHL 2; [1987] 1 AC 128 at p 141G, "the inherent unreliability of the witness [in these three established categories where such a warning is obligatory] may well not be apparent to the jury". The question is whether police officers who give evidence about the circumstances in which a defendant confessed his guilt or made incriminating admissions tantamount to guilt or implicating him in the commission of the offence in some way should be regarded as coming within the categories of those witnesses who, for one reason or another, might not be as reliable as other categories of witness.

21. On this issue I prefer the reasoning of the minority in McKinney. I cannot improve on their language. At p 484, Brennan J said:

"Judicial experience of the evidence of accomplices and young children has shown, and judicial experience of the evidence of the victims of sexual offences was thought to show, that incriminating evidence from such sources should be accepted, if at all, only with considerable caution. No material has been submitted to this Court which warrants the making of a judicial reflection on police who tender evidence, uncorroborated, of a suspect's confession. There is, of course, ample anecdotal material showing police evidence to have been unreliable, even corrupt, but nothing to show that police throughout Australia are generally so unreliable that their evidence of confessions should be subject in every case to the adverse reflection which is inherent in the giving of a warning."

Along similar lines were these remarks of Dawson J at p 488:

"... the applicants seek to have this Court create a new category of suspect witnesses, namely, police giving evidence of a confession alleged to have been made by an accused, in respect of whom a compulsory warning of an undefined but necessarily of a depreciatory kind, must be given. The reason for the traditional warnings is said to be the common experience of the courts that the evidence of witnesses in the recognized categories is inherently unreliable in a way which may not be readily apparent to a jury. That has never been said of police evidence, whether it be of a confession or otherwise. And if it could be said of evidence of a confession, then it is difficult to see why it could not be said of other police evidence, for the opportunities open to the police to fabricate evidence are certainly not confined to the taking of a confession."

22. The justification for the rule of practice mandated by the majority of the court in McKinney was correctly summarised by Brennan J at p 485 as "'the special position of vulnerability of an accused to fabrication' when the accused has been 'involuntarily held in police custody without access to a lawyer or even an independent person who might confirm his account'." For the reasons which Brennan J proceeded to give, I regard that justification as unconvincing.

23. The evidence relating to an uncorroborated confession will always have to be scrutinised with care. As Calanchini P said at [41] in his judgment in the Court of Appeal, it may be appropriate for the trial judge to remind the assessors of particular features of the evidence which may be thought to warrant closer attention. Whether any comment about the evidence should be made, and what that comment should be, are matters for the trial judge. There may be cases in which it is appropriate to comment on the evidence in forceful terms. But to require a standard warning to be given to the assessors by the trial judge, whenever the defendant denies that he confessed his guilt or claims that his acknowledgment of the accuracy of what was attributed to him was forced on him, and there is no other evidence independent of the police corroborating the circumstances in which the confession was made, is in my view a step too far.

24. All of this is in line with the modern trend to reduce the number of situations in which a warning along the lines suggested here should be given. For example, a trial judge is no longer required to warn the assessors of the danger of convicting a defendant charged with an offence of a sexual nature when the evidence of the complainant is uncorroborated: see section 129 of the Criminal Procedure Decree. In the circumstances, the judge was not in error in not giving the assessors a warning of the kind asserted by Kean.

25. Ground 4: Expert evidence. The prosecution did not call any evidence from a handwriting expert to prove that what purported to be Kean's signatures on the record of his interview acknowledging the accuracy of the record were his. Instead it' relied on the evidence of DC Joape Ravunibola and DC Alipate Matai. Their evidence was that it was DC Ravunibola who had interviewed Kean in the presence of DC Matai, and that Kean had signed the record of the interview in their presence. In the Court of Appeal it was argued that the prosecution should have called expert evidence to confirm that what purported to be Kean's signatures on the record of the interview were his. The Court of Appeal is said to have erred in law in holding that it had not been necessary for the prosecution to call such evidence.

26. The decision of the Court of Appeal on this topic cannot be faulted. The argument is tantamount to saying that there had to be corroboration of the evidence which DC Ravunibola and DC Matai gave on this aspect of the circumstances in which Kean allegedly confessed his guilt. There is no rule of law or practice that such corroboration is required.

27. Ground 5: The absence of material witnesses. In this ground of appeal, it is contended that the trial judge erred in law by failing to direct the assessors that there were material witnesses who the prosecution had failed to call. This was not a ground of appeal relied on in the Court of Appeal, and Mr Savou could not develop the argument himself because he did not know which potential witnesses the complaint related to. It was left to Kean to develop this ground. It was the second ground of appeal which he argued himself.

28. We asked Kean who these potential witnesses were. He referred to the investigating officer, whose evidence, he said, was critical to the use made by the prosecution of photocopies of the record of his interview. He mentioned one other person as well. A stolen minivan which the prosecution alleged had been the vehicle in which the robbers had made their getaway had been found abandoned in Nakasi. Kean said that the owner of the minivan should have been called to give evidence about whether it had indeed been stolen and used in the robbery.

29. There was one other thing which Kean said, but which we had some difficulty following. As we understand it, Kean was saying that there had been some evidence that the men who had participated in the robbery had been seen drinking together at some stage. Kean said that none of the people who had seen those men had mentioned that he was one of them. We took him to be saying that the people who had not mentioned him as being among those men were the witnesses he said who should have been called to give evidence.

30. It was for the prosecution to call such witnesses as it chose. If the prosecution did not propose to call a particular witness who would otherwise have been available to give evidence, and if the defence wanted the witness called, the defence could have asked the prosecution to tender that witness for cross-examination. Alternatively, when it came to the defence case, the defence could have called the witness themselves. Of course, nothing could be done about the investigating officer who was overseas at the time of the trial, but his evidence was only relevant to the issue considered in the voir dire about the permissibility of using photocopies, and that was not really an issue in the trial proper. As it is, Kean did not claim that he had asked the prosecution to tender any of the other potential witnesses. As for calling them himself, Kean did not tell us whether he had known their names and how to contact them. Assuming that he had not known that, he did not claim that he had asked the prosecution for their names or contact details so that he could approach them with a view to them giving evidence on his behalf.

31. Having said all that, this ground of appeal relates to the judge's failure to tell the assessors that there were potential witnesses who the prosecution had failed to call. That presupposes that the trial judge had been told by Kean that he had wanted the prosecution to call them but the prosecution had refused. No such allegation has been made by Kean, and there is nothing in the record which suggests that the judge was told that. In the circumstances, any criticism of the judge for failing to mention the missing witnesses to the assessors is misconceived.

32. The other ground: The failure to adjourn the case. I come finally to the ground of appeal which was not in the amended grounds of appeal, but which Kean said that he still wanted to advance. It was the third ground of appeal which Kean argued himself. This ground relates to the application he made to the trial judge on the day the trial started for the trial to be adjourned so that he could be legally represented. The trial judge refused that application, and Kean claims that this resulted in him being denied a fair trial.

33. The court record shows that Kean first appeared in the High Court on what was to become the charge which he eventually faced on 12 October 2007. He told the judge on 14 November that he would be applying for legal aid, though he told us that he had already applied for legal aid by then. He had done so, he told us, on 7 August when he had first appeared in the magistrates' court in connection with this charge. On 11 January 2008, the date for the trial was fixed for 28 January, but on 23 January the trial date was vacated. A new trial date had not been fixed by 11 April when Kean told the court that his application for legal aid had been refused. He added that he proposed to appeal against the refusal of legal aid. Indeed, he told us that it was on that very day that he had lodged his appeal against the refusal of legal aid.

34. On 19 May 2008, a new date for the trial was fixed. It was to start on 28 July 2008. In the meantime, the court was told on 11 July 2008 by a representative of the Legal Aid Commission that Kean's application for legal aid had been refused. Without the knowledge of hindsight, that could either have been a reference to the outcome of his appeal against the refusal of his application for legal aid, or it could just have been a repetition of what the court had been told on 11 April 2008 about his original application for legal aid having been refused.

35. The trial did not get under way on 28 July. It started on 30 July instead. Kean was in custody at the time. He was not brought to court first thing that morning because he had claimed to be ill. The case was stood down to 10.45 am for the State to consider whether to apply for the severance of Kean's case and to proceed against the other three defendants. Before the court adjourned, one of Kean's co-defendants told the judge that he was still awaiting a decision from the Legal Aid Commission on his application for legal aid. He applied for an adjournment of the trial. The judge did not rule on that application at that stage. By the time the court reconvened at 10.50 am, Kean had been brought to court. A duty solicitor from the Legal Aid Commission had come to court as well. When the court reconvened, she told the judge that the applications for legal aid of those defendants whose applications were still pending had been refused.

36. The record shows that Kean then applied for an adjournment. He said that he was not feeling well and wished to apply for legal aid. He told us that what he meant by that was that he had not yet heard from the Legal Aid Commission about the outcome of his appeal against the refusal of legal aid. The court record does not say that the other defendant who had applied for an adjournment earlier that morning then renewed his application for an adjournment, but the judge refused the application for an adjournment. The trial was stood down to 2.15 pm which was when the trial began with none of the defendants represented.

37. This narrative shows that the basis of Kean's claim that the judge should have adjourned the trial was that he was still waiting to hear whether his appeal against the refusal of legal aid would be successful. In view of that, we asked at the hearing for enquiries to be made of the Legal Aid Commission about Kean's appeal against the refusal of legal aid. The Legal Aid Commission has informed us that it has no record of Kean making such an application. We are not altogether surprised. If he really had appealed against the refusal of legal aid, we would have expected there to have been some reference to that somewhere in the record. There was no such entry. All there was his statement on 11 April 2008 that he would be appealing against the refusal of legal aid. Again, if he had really appealed against the refusal of legal aid, we would have expected him to mention that on the day the trial stated. As we have said, the record shows him saying only that he wished to apply for legal aid. The inescapable fact is that Kean had known since 11 April 2008 that his application for legal aid had been refused, and that he did nothing further about it.

38. In the interests of completeness, I should add that the Court of Appeal noted that there was nothing in the record to suggest that Kean had asked for an adjournment on the basis that he had not had sufficient time to consider the bundles of disclosures which had been provided to him. That is understandable. The initial bundle of disclosures would have been provided to him shortly after his application for legal aid had been refused. A second bundle of disclosures was provided to him two days before the trial began. It looks as if two additional bundles of disclosures were provided to him on the day the trial began, and they related to evidence which was relevant to the issues to be canvassed in the voir dire. They consisted of 15 witness statements, though none of them were particularly long. Unlike one of his co-defendants who had only been provided with all four bundles of disclosures that day, Kean had had sufficient time to read the contents of the first two bundles of disclosures before the day the trial began, and it would not have taken him long at all to see where the contents of the last two bundles of disclosures fitted into the scheme of things.

39. For these reasons, I do not think that the trial judge erred in refusing to adjourn Kean's trial, even if a different view might be taken in respect of any of his co-defendants.

40. Conclusion on the grounds of appeal against conviction. It follows that I do not think that there is any merit in any of the grounds of appeal against conviction, and I would refuse to enlarge Kean's time for lodging his petition for special leave to appeal against his conviction.

The grounds of appeal against sentence

41. Five grounds of appeal against sentence were set out in the amended grounds of appeal. In his written submissions, Mr. Savou wrote:

"[These] grounds are easily condensed into one core issue ..., that is, whether the imposition of a non-parole period by the Court of Appeal [is] a breach of the petitioner's constitutional entitlement."

Although that issue was in effect what grounds 1 and 2 of the amended grounds of appeal addressed, grounds 3-5 could be said to have addressed other issues. However, we have taken Mr. Savou at his word, and proceeded on the basis that Kean is relying only on the argument that the fixing of a non-parole period was incompatible with his constitutional rights.

42. The argument arises in the following way. When Kean was sentenced in the High Court on 15 September 2008, the judge did not have the power to fix a non-parole period during which Kean was not eligible to be released on parole. The relevant provisions of the Sentencing and Penalties Decree had not been enacted by then. But he did have the power under section 33 of the Penal Code to fix a minimum period of imprisonment which Kean had to serve, provided that the maximum term he could sentence Kean to was ten years' imprisonment or more. That was also the position on 7 July 2007 when the offence for which Kean was being sentenced had been committed. As I have said, the judge chose not to exercise his power to fix a minimum period of imprisonment. Instead, he sentenced Kean to 14 years' imprisonment, five of which were to be served concurrently with an existing sentence of 11 years' imprisonment, which meant that Kean would have to serve 20 years' imprisonment in all, subject to any remission which he might earn under sections 27(2) and 28(1) of the Prisons and Corrections Act 2006. If he was of "good behavior" while in prison, he might expect to have one-third of his sentence remitted, but in the light of the way the sections have been drafted, it looks as if an offender does not have the legal right to have any part of his sentence remitted. Whether he might have a legitimate expectation that one-third of his sentence would be remitted if he was of "good behaviour" while in prison is another matter.

43. By the time the Court of Appeal gave judgment in Kean's appeal on 13 November 2013, the power of the court to fix a non-parole period had been enacted by section 18 of the Sentencing and Penalties Decree. Unless the nature of the offence or the past history of the offender made the fixing of a non-parole period inappropriate, the court sentencing an offender to imprisonment for life or for a term of two years or more must fix a non-parole period during which the offender is not eligible to be released on parole. A number of authorities have held that this provision was not intended to provide for the early release of offenders once they had completed the non-parole period. The non-parole period was intended to be the minimum period which the offender would have to serve. In other words, it was intended to require the court to ensure that the offender would not be released earlier than the court thought appropriate, whether on parole or by the operation of any practice relating to remission. Having said that, there is, as yet, no Parole Board in place in Fiji to consider the release of prisoners on parole.

44. As I have said, the Court of Appeal allowed Kean's appeal against sentence by directing that the term of 14 years' imprisonment should be served concurrently with his existing sentences. However, it fixed a non-parole period of 13 years. It had the power to do so by virtue of the transitional provisions in the Sentencing and Penalties Decree. Section 61(2)(b) of the Sentencing and Penalties Decree provides:

"On the hearing of any appeal against a sentence imposed by a court prior to the commencement of this Decree, the court hearing the appeal may –

(a) ...

(b) vary the original sentence and impose any sentence in accordance with this Decree."

However, although it had the power to fix a non-parole period, it was not required to do so (unlike the position in which it would have been if it had been sentencing Kean at first instance). That is because section 61(2)(b) uses the word "may".

45. The argument on Kean's behalf in effect is that the Court of Appeal's power to fix a non-parole period in his case under section 61(2)(b) had to be exercised in a way which was compatible with his constitutional rights. By the date of the Court of Appeal's judgment, the 2013 Constitution had come into force. Section 14(2)(n) provided, in the section dealing with the rights of accused persons:

"Every person charged with an offence has the right –

...

(n) to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time the offence was committed and the time of sentencing ..."

This is, at first blush, an unpromising line of argument, because the Court of Appeal's power to fix a non-parole period was not materially different from the trial judge's power under section 33 of the Penal Code to fix the minimum period which Kean had to serve. So what was contended instead was that in its effect the sentence passed by the Court of Appeal was more severe in terms of the length of time Kean will be in prison for than the sentence passed at first instance. It is more severe, argued Mr. Savou, because Kean is not "able to access the 1/3 remission".

46. We have tried to put some flesh on the bones of that argument. On the sentence which the judge passed, and on the assumption that Kean is of "good behaviour" while in prison, he could have expected to be released after he had served 13 years and 4 months. However, on the sentence which the Court of Appeal imposed, and again on the assumption that Kean is of "good behaviour" while in prison, he has to serve at least 13 years, and the actual date of his release will then depend on the practice of the Commissioner of Prisons at the time when it comes to calculating remission in cases in which a non-parole period has been fixed. We can take judicial notice that the current practice is to release the offender once he has served two-thirds of the difference between the primary sentence and the non-parole period. On that footing, Kean will not be released until he has served 13 years and 8 months, assuming, of course, that the Commissioner's current practice of calculating remission in cases where a non-parole period was fixed remains the same, and assuming also that Kean is of "good behavior" while in prison.

47. The difficulty with this argument is that it focuses, not on "the prescribed punishment for the offence", but on how the grant of remission works in practice. There may be good reasons for saying that the way in which the Commissioner calculates remission in cases in which a non-parole period has been fixed is questionable. Indeed, many people might say that it would be desirable for a prisoner to make an application for judicial review of the current practice to enable the court to pronounce on its legality. But it is not the prescribed punishment for the offence which has the effect of making the sentence which the Court of Appeal substituted for that of the trial judge more severe than the one which the trial judge passed. It is how the Commissioner calculates remission in cases where a non-parole period has been fixed.

48. The maximum term of imprisonment for the offence of robbery with violence contrary to section 293(1)(b) of the Penal Code was imprisonment for life, whereas the offence which Kean committed, if it had been committed at the time of the Court of Appeal's judgment, would have been characterised as aggravated robbery contrary to both limbs of section 311(1) of the Crimes Decree. The maximum term of imprisonment for that offence is 20 years. It follows that the prescribed punishment for the new offence of aggravated robbery on 13 November 2013 when the Court of Appeal varied Kean's sentence was less severe than the prescribed punishment for the old offence of robbery with violence on 7 July 2007 when Kean committed the offence. Not that that is to the point. The critical point is that the prescribed punishment (in this context, the maximum term of imprisonment) for the offence of robbery with violence contrary to section 293(1)(b) of the Penal Code was imprisonment for life on both 7 July 2007 and 13 November 2013. Kean's constitutional rights under section 14(2)(n) of the Constitution of Fiji were therefore not infringed by the sentence which the Court of Appeal passed.

49. In reaching this conclusion, I have not overlooked cases like Silatolu v The State [2006] FJCA 13 or Yunus v The State [2013] FJSC 3. Those cases can readily be distinguished from the present case. In those cases, there had been a change in the legislation between the dates of the offences and the dates on which the offenders were sentenced, with the result that the offenders had, at the date of sentence, received harsher punishment than could have been imposed at the date of the offences. That is not the case here. The prescribed punishment for the offence of robbery with violence contrary to section 293(1) (b) of the Penal Code was the same, whether the offender was being sentenced before or after the replacement of the offence of robbery with violence by the offence of aggravated robbery. And the power (not the obligation) which a judge had on 7 July 2007 to fix a minimum term of imprisonment under section 33 of the Penal Code was no different from the power (not the obligation) which the Court of Appeal had on 13 November 2013 to fix a non-parole period under section 61(2) (b) of the Sentencing and Penalties Decree.

50. This ground of appeal had sufficient merit to justify an enlargement of Kean's time for lodging his petition for special leave to appeal against his sentence, and it involved a question of such general legal importance to justify granting him special leave to appeal. However, for the reasons I have given, I would dismiss the appeal against sentence and confirm the orders made by the Court of Appeal in his case.

Dep, JA

51. I agree with the findings and conclusions of Keith JA.
    

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

Hon. Mr. Justice Brian Keith
Justice of the Supreme Court

Hon. Mr. Justice Priyasath Dep
Justice of the Supreme Court

Solicitors:

Office of the Legal Aid Commission for the Petitioner
Office of the Director of Public Prosecutions for the Respondent.