Simeon v Public Prosecutor [2008] VUCA 9; Criminal Appeal Case 05 of 2008 (30 April 2008)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

CRIMINAL APPEAL CASE No.05 OF 2008

BETWEEN:

HARRY SIMEON
Appellant

AND:

THE PUBLIC PROSECUTOR
Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice Bruce Robertson
Hon. Justice Oliver Saksak
Hon. Justice Christopher Tuohy
Hon. Justice John Mansfield

Counsel: Mr. Hillary Toa for the Appellant
Mr. Bernard Standish for the Respondent

Date of hearing: 25 April 2008
Date of judgment: 30 April 2008

JUDGMENT

1. This is an appeal and an application for leave to extend the time for appealing against conviction and sentence. The Appellant was tried in the Supreme Court sitting at Epi on 21 April 2006 on one count of incest and one count of rape. On 1 August 2006, the verdict was given convicting him of rape and acquitting him of incest. On 1 October 2007, the Appellant was sentenced to 3½ years imprisonment.
   
2. The application and supporting sworn statement together with a Notice of Appeal were filed on 2 April 2008. In respect of conviction, that was 1 year, 7 months and 15 days outside the limit prescribed by Section 201(1) of the Criminal Procedure Code [CAP.136]. In respect of sentence, it was 5 months 17 days outside the time limit because sentence was imposed 1 year and 2 months after the conviction was entered.
   
3. The grounds set out in the application for extension are:-
   

(i) That the Appellant had first approached Mr. John Malcolm as his Legal Counsel, and found out that he could not pay him and so he had to wait until he has enough money to get the lawyer of his choice but that by then the fourteen (14) days appeal period had lapsed.

(ii) The fact that the Applicant had to wait for one (1) year and nine (9) long months, and fifteen (15) days before he was sentenced on 1st October 2007.

(iii) It was not until later that the Applicant realized that the longer he waited the harder it becomes for the Court to grant him audience to hear his appeal.

(iv) Such further or other grounds that the Applicant may depose to in his sworn statement or that which he advance through counsel.

4. The ground for the appeal against conviction was that the trial judge refused to hear a crucial witness whom the accused wished to call in his defence.
   
5. The Appellant has not put before the Court any evidence or other material in support of this assertion. Specifically, he has not provided the Court with any evidence as to the following matters which would be necessary before the Court could even begin to consider a conviction appeal:
   

(a) why the witness was not called;

(b) what the evidence of the witness would have been;

(c) why it was crucial.

6. The necessity for this material was pointed out in the Respondent’s submissions but in any event ought to have been evident to Appellant’s counsel from the beginning. Nevertheless it was apparent that nothing has been done to provide it.
   
7. When the Court pointed this out to Appellant’s counsel, he sought an adjournment of the application to the next sitting of the Court. This was understandably opposed by the Respondent on various grounds but primarily the complete absence of anything to substantiate the proposed appeal. The Respondent’s counsel asked for the application to be dismissed but at the same time made it clear that the Respondent would not plead a dismissal as a bar to any future application to extend time for appeal.
   
8. We consider that it is proper to dismiss the application now. It is entirely without evidential support. The witness we are told would give hearsay evidence of what the victim’s father said at a meeting long after the offending. Anything he could say would be hearsay also. It is clear from the discussion before us that the difficulties in front of the Appellant in mounting a viable conviction appeal are formidable. We do not think it is right in those circumstances to allow the present baseless application to hang over. It is dismissed.
   
9. As to the application for leave to appeal sentence, it is appropriate to look first at the merits before considering the reasons for the delay. The judge adopted as a starting point 5 years imprisonment on the basis of the guidelines set out in Public Prosecutor v. Ali August, Criminal Case No.14 of 2000 and Public Prosecutor v. Scott and Tula, [2002] VUCA 29; CAC 02 of 2002 (24 October 2002).
   
10. He identified the aggravating features: the force used, a threat to the victim that he would cut her with a knife if she reported the matter, and the breach of trust involved given the family relationship of the Appellant and the victim. To recognise these features he increased the starting point to 6 years. That was a merciful assessment. A substantially higher increase in the starting point would have been unchallengeable especially given the age of the victim, 15 years.
    
11. After taking into account time spent in custody before sentence (calculated by the sentencing Judge at 1 year 9 months and 19 days) the final sentence of 3½ years imprisonment was reached. In effect a little over 8 months was allowed for mitigating factors, the most significant of which were the Appellant’s lack of previous convictions and the effect of imprisonment on his family. No criticism could be made of that allowance. Overall the effective sentence of 5 years and 3 months and 19 days was well within the range.
    
12. The only concern we have was not raised by the Appellant and concerns the effect of the parole issue identified in Withford v. Public Prosecutor [2007] VUCA 20, CAC 7 of 2007 (30 November 2007). That case had not been heard when this Appellant was sentenced. Because of the extraordinary length of time that the Appellant spent in custody before sentence the date when the Appellant becomes entitled to apply for early release under Section 51 of the Correctional Service Act (No.10 of 2006) does not occur until 1 July 2009. If he had not been remanded in custody before trial and sentence, it would occur in early September 2008.
    
13. Of course there is no entitlement to early release, only an entitlement to apply for it. As we said in Withford however, an assessment is required by the sentencing Judge, which was not done here. Because of the extent of the deferral of the right to apply in this case, we are satisfied that in justice some recognition needs to be made now in the sentence. For that reason alone, we consider that a reduction of 6 months should be made, taking into account the information put before us about his good performance in prison and the reconciliation ceremony carried out on his behalf. In doing so we make two comments:
    

(a) we repeat what we said in Withford that a change in the legislation should be considered to obviate these problems by providing that a sentence should operate from the time an offender went into custody on that charge. We understand that the Correctional Service has the capacity to administer a sentence on that basis.

(b) the length of the delay between conviction and sentence in this case was unjustifiable. It should be rare that an offender is not sentenced within a month of conviction.

14. In light of the view we have reached on the merits, it is unnecessary to consider further the application for leave to extend time. Except for the Withford point, the substantive appeal has no merit. On that point, we consider that the justice of the case requires limited leave to be given.
    
15. We cancel the sentence of 3½ years imprisonment imposed in the Supreme Court and impose instead effective from 1 October 2007 an immediate sentence of 3 years imprisonment.
    

DATED at Port-Vila this 30th day of April 2008

BY THE COURT

Vincent LUNABEK CJ
Bruce ROBERTSON J
Oliver A. SAKSAK J
Christopher TUOHY J
John MANSFIELD J