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Supreme Court of Fiji |
IN THE SUPREME COURT OF FIJI
CRIMINAL JURISDICTION
Criminal Appeal No. CAV 25 of 2018
BETWEEN:
PENIASI TUILASELASE
Applicant
AND:
THE STATE
Respondent
CORAM:
Hon. Mr. Justice Kamal Kumar,
Chief Justice and President of Supreme Court
COUNSEL:
Appellant in Person
Mr. Y. Prasad for the Respondent
Hearing:
1 December 2021
Ruling:
13 January 2022
R U L I N G
(Application for Enlargement of Time)
Introduction
[1] On 30 July 2019, Applicant filed Application for Enlargement of Time for Leave to file Petition for Special Leave to Appeal Court of Appeal decision in Criminal Appeal Nos. AAU 63, 65, 68 and 102 of 2014 and delivered on 14 June 2018 (“the Application”).
[2] The Application was called almost four (4) times to await the outcome of Applicant’s appeal to the Board of Legal Aid Commission (LAC).
[3] On 8 July 2020, Court was informed that Applicant’s appeal to LAC Board has been refused when Court directed parties to file Affidavits/Submissions and adjourned the Application to 17 September 2020, for hearing.
[4] The Application was next called on 11 November 2020, when Applicant was directed to file Submissions in Reply and the Application was adjourned to 1 December 2020, for hearing.
[5] On 1 December 2020, parties informed the Court that they rely on Submissions filed when the Application was adjourned for Ruling on Notice.
Background Facts
[6] The Applicant was charged with others with the offences of Aggravated Robbery and Theft of a Motor Vehicle contrary to sections 311(a)(b) and 291(1) of the Crimes Act 2009.
[7] The Applicant and other Accuseds, after the conclusion of trial were convicted of the charges and sentenced to fourteen (14) years imprisonment with a non-parole period of twelve (12) years.
[8] The particulars of charge as appears from Court of Appeal decision are as follows:
“First Count
Statement of Offence
Aggravated Robbery: Contrary to section 311(1)(a)(b) of the Crimes Decree No. 44 of 2009.
Particulars of Offence
Sitiveni Tuisamoa, Samuela Beeby, Alipate Lesi and Peni Tuilaselase on the 25th day of July 2012 at Davuilevu Housing, Nasinu in the Central Division being armed with pinch bars and cane knives robbed one Ram with cash of $5,010.00, 2 laptop computers valued at $4,400.00, assorted jewelleries valued at $12,800 and mobile phones valued at $2,400.00 to total value of $24,610.00 the properties of the said RAM.
Second Count
Statement of Offence
Theft of Motor Vehicle: Contrary to section 29(1) of the Crimes Decree No. 44 of 2009.
Particulars of Offence
Sitiveni Tuisamoa, Samuela Beeby, Alipate Lesi and Peni Tuilaselase on the 25th day of July 2012 at Davuilevu Housing in the Central Division stole a motor vehicle registration GCEP 01 valued at $30,300.00 the property of RAM.”
[9] The Applicant and other Accuseds sought Leave to Appeal the conviction and sentence passed.
[10] The Single Judge of Court of Appeal granted Leave to Appeal.
[11] The Full Court of Appeal heard the Appeal and dismissed the appeal against conviction and sentence.
[12] The Applicant and other Accuseds filed Petition for Special Leave to appeal Court of Appeal’s decision regarding conviction to this Court.
[13] Full Court after hearing the Petition dismissed Applicant’s Petition for Special Leave to Appeal and affirmed the conviction and sentence.
[14] It was well established this Court has jurisdiction/discretion to grant or refuse Leave to Appeal out of Time. The factors which of course are not exhaustive that needs to be taken into consideration when dealing with such applications are:-
(i) Length of delay;
(ii) Reason for the delay;
(iii) Chance of appeal succeeding if time for appeal is extended or merits of the case; and
(iv) Degree of Prejudice to the Respondent if application is granted.
Rasaku v State [2013] CAV 13 of 2009 (24 April 2013);
CM Van Stilleveldto BV v EL Carriene Inc [1983] 1 ALL ER 699 of 704;
Norwich and Peterborough Building Society v Steed [1992] 2 ALL ER 830 at 83;
Ist Deo Maharaj v BP (South Sea) Co.Ltd. Civil Appeal No. ABU0051 of 1994S – FCA as page J;
Kumar v State; Sinu v State [2012] CAV 1 of 2009 (21 August 2012).
[15] Hence the Court must be given facts, in the form of evidence explaining and/or covering these four factors.
Latchmi & Anor v Moti & Ors. (1964) 10 FLR 138.
[16] It must be understood that when Court is empowered to exercise a discretion, it should do so judicially and in the interest of justice.
[17] The factors provided by Courts when dealing with certain Applications are to guide Court to reach a decision which is fair and just under the circumstances of each case.
[18] In exercising the discretion, the Courts should consider the factors highlighted by Superior Courts in addition to any other factors they think necessary before reaching a decision which they consider will serve interest of justice in a particular case.
[19] Interest of Justice demands that the Courts take a holistic approach by considering all the factors mentioned at paragraph [14] of this Ruling in addition to any other relevant factors before reaching a decision rather than dismissing the application after considering only one or two factors.
[20] In Kumar v State; Sinu v State Supreme Court stated as follows:-
“[7] The rights of appeal are granted by statute within a framework of rules. Enlargement normally can only 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 courts can only exercise a limited discretion. Viliame Caubati AAU 0022.03S 14th November 2003 at p.5”
Length of Delay
[21] Applicant filed the Application on 30 July 2019 which is over twelve (12) months, after the due date for filing of Petition for Special Leave.
[22] There is no doubt the delay is inordinate.
Reason for Delay
[23] Lord Davies in Revici’s case stated that:-
“... rules are there to be observed and if there is non-compliance (other than a minimal kind), that is something which has to be explained away. Prima Facie if no excuse is offered, no indulgence should be granted.” (at 747 para F)
Application was refused in Revici’s case as no explanation for delay was given.
[24] In Ist Deo Maharaj – the Court of Appeal adopted with approval the following quote from Gallo v Dawson [1990] 64 ALJR458 at 459:
“Case needs to be exceptional before a Court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he/she had researched the issues involved. In Hughes v National Trustees Executors & Agency Co. of Australasia Ltd [1978] VicRp 27; [1978] VR 257, McInerney J pointed out (at 263) that one object of fixing times under court rule is “to achieve a timetable for the conduct of litigation in order to achieve finality of judicial determinations.” When the time for appealing has expired, the litigation is at an end; the successful party is entitled to the benefit of the judgment in his or her favour. At that stage, the successful party has a “vested right to retain the judgment.” It would make a mockery of O 70, r 3 if, months after the time for appealing has expired, the unsuccessful party could obtain an extension of time on the ground that he or she had delayed appealing because that person wanted to research the issues involved. Lack of knowledge is a misfortunate, not a privilege.”
[25] In Tevita Fa v Tradewinds Marine Ltd. & Anor. Civil Appeal No. ABU0040 of 1994 (FCA) – His Lordship Justice Thomson (as then he was) in dismissing Appellant’s application for extension to appeal made four days after the expiration of time to appeal stated:-
“The application for leave to appeal was fixed only 4 days after the end of the period of six weeks. That is a very short period but time-limits are set with the intention that they should be served and even lateness of only four days requires a satisfactory explanation before an extension of time can properly be granted. In this case, as stated above, the applicant has given no explanation at all. That he may have been confused is merely an inference that Mr. Patel has asked me to draw from his statement of present belief that time began to run only from 8 August, 1994.”
In Tevita Fa’s case, it was submitted by Appellants’ Counsel that there had been a misunderstanding on the solicitor’s part as to when time started running for Appeal.
[26] The following explanation for delay has been held to be unsatisfactory and not a basis for granting extension by the Fiji Court of Appeal:-
[27] At paragraph 5 of his Affidavit in Support, the Applicant states as follows:
“5. That I apologise to the Honourable Court for my failure to comply with the Rules of the Supreme Court and it could be understandable that as a lay person I was unrepresented without any legal knowledge of appeal proceedings and Rules of the Supreme Court.”
[28] This court notes that, the Applicant either by himself or assistance of senior inmates filed very comprehensive Submissions in respect to appeal against conviction.
[29] It is obvious from Submissions filed that the Applicant or his helpers were fully versed with the Rules of Court and as such should have complied with same.
[30] However, even though the fact that reasons provided is not satisfactory, Court will consider remaining factors to see if interest of justice demands extending time to appeal.
Merits of the Appeal – chances of appeal succeeding
[31] His Lordship Justice Richmond in Avery v No. 2 Public Service Appeal Board & Ors. [1973] 2 NZLR 86 stated as follows:
“Once an appellant allows the time for appealing to go by then his position suffers a radical change. Whereas previously he was in a position to appeal as of right, he now becomes an applicant for a grant of indulgence by the Court. The onus rests upon him to satisfy the Court that in all the circumstances the justice of the case requires that he be given an opportunity to attack the judgment from which he wishes to appeal.”
[32] Petition for Leave to Supreme Court is governed by section 7 of Supreme Court Act 1998 (SCA). Section 7(1) of SCA provides as follows:
“7(1) In exercising its jurisdiction under section 98 of the Constitution of the republic of Fiji with respect to 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 leave to appeal;
(b) grant leave and dismiss the appeal or instead of dismissing the appeal make such orders as the circumstances of the case require; or
(c) grant leave and allow the appeal and make such other orders as the circumstances of the case require.”
[33] Applicant submits two (2) grounds of appeal being:-
Ground 1
The learned trial judge erred in law and in principle by imposing the sentence on the petitioner whereby the head sentence being too close to the non-parole period.
Ground 2
The learned trial judge took into account extraneous matters when he considered matters already present in the particulars of offence as aggravating features of the offending.
Ground 1
[34] Both parties relied on what was said in Tora v State [2015] AAU 63 of 2011 (27 February 2015) and Bogidrau v State [2016] CAV 0031 of 2015 (22 April 2016).
[35] In Tora’s case the Court of Appeal stated as follows:-
“..... the non-parole period should not be so close to the head sentence as to deny or discourage the possibility of re-habilitation. Nor should the gap between the non-parole term and the head sentence be such as to be ineffective as a deterrent.”
[36] In Bogidrau the Supreme Court stated as follows:-
“4. Section 18 of the Sentencing and Penalties Decree provides for the fixing of a non-parole period. Unless the nature of the offence or the past history of the offender make 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 may not be released. The non-parole period was intended to be the minimum period which the offender would have to serve, so 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. At present there is no mechanism in place to enable prisoners to be released on parole: a parole board, or an equivalent body, has not yet been created. That means that the only route by which an offender can currently be released before the expiry of his head sentence is by the operation of the current practice relating to remission.
5. That explains why in Tora v the State [2015] FJSC 23, the Supreme Court held at [13] that what had been said by the Supreme Court in Raogo v The State (CAV 003 of 2010, 19 August 2010) about the provision in the Penal Coide which enabled the court to fix a minimum period which the prisoner had to serve applied with equal force to the new regime in section 18 of the Sentencing and Penalties Decree. In Raogo, the Supreme Court had said at [30]:
“The mischief that the legislature perceived was that in serious cases and in cases involving serial and repeat offenders the use of the remission power resulted in these offenders leaving prison at too early a date to the detriment of the public who too soon would be the victims of new offences”.”
[37] The trial judge fixed the non-parole period of twelve (12) years against a total sentence of fourteen (14) years imprisonment.
[38] This Court finds that the trial judge fixed the non-parole period in line with what is stated at section 18 of SPA, in Tora and Bogidrau.
Ground 2
[39] The trial judge took following factors in aggravating the sentence:-
(i) This violent robbery was well planned and executed;
(ii) The level of violence used against the complainants (ie. PW1, PW2 and PW3) were serious and unpleasant. PW1 and PW2 were repeatedly punched and injured. The whole family was threatened with pinch bars, cane knives and a bolt cutter;
(iii) $24,610 worth of properties were stolen and never recovered. Their car worth $30,000 was extremely damaged when recovered from Lautoka;
(iv) The accuseds showed no regard whatsoever for this family’s right to exist peacefully in their house, and by offending against them, showed no regard to their rights as human beings;
The mitigating factor is as follows:
(i) The accused have been remanded in custody for approximately 1 year 9 months, since 14 August 2012.
[40] Section 311(1) of the Crimes Act 2009 provides as follows:-
“(1) A person commits an indictable offence if he or she –
(a) commits a robbery in company with one or more other persons; or
(b) commits a robbery and, at the time of the robbery, has an offensive weapon with him or her.”
[41] A person is said to commit an aggravated robbery if the person is in the company of one or more persons and at the time of committing the robbery has offensive weapon with him or her.
[42] This Court holds that the planning, execution, manner of committing the offence, level of violence, nature of injury and embarrassment inflicted on the victims are not features of particulars of offence of aggravating robbery.
[43] There is no evidence that the Trial Judge took into consideration any extraneous matters into consideration.
[44] All factors taken into account as aggravating factors were part of evidence produced in Court during the trial.
[45] The Court therefore finds that the proposed grounds of appeals are unmeritorious and has no chance of success.
Prejudice to Respondent
[46] No evidence has been led to establish that Respondent would suffer any prejudice if time to appeal is extended.
Conclusion
[47] This Court finds that:-
(i) Delay is inordinate;
(ii) Reason for delay is unsatisfactory;
(iii) Proposed grounds of appeal are unmeritorious and has no chance of success;
(iv) Respondent would not have suffered prejudice if time was extended.
[48] In view of what is stated at paragraph [47] of this Ruling interest of justice demands that the Application for Enlargement of Time be dismissed and struck out.
Costs
[49] This Court takes into consideration that both parties filed submissions and that the Applicant is serving prison term.
Orders
[50] This Court orders that:-
(i) Application for Enlargement of Time filed on 30 July 2019 is dismissed and struck out.
(ii) Each party bear their own costs.
Hon. Justice Kamal Kumar
President, Supreme Court
Solicitors
Applicant in Person
Office of the Director of Public Prosecutions for the Respondent
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