Oseih v Public Prosecutor [2001] VUSC 12; Criminal Appeal Case 008 of 2000 (26 February 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Appellate Jurisdiction)

Criminal Appeal Case No.8 of 2000

BETWEEN:

NEVU OSEIH

class="MsoNormal" align="cen="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> JOSEPH SERAI

MICHEL NEVU

RONALD SAPO

SELIAL EAFRE

AIME SEKREM

Appellants

AND:

THE PUBLIC PROSECUTOR

Respondent

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Coram: Mr Justice Oliver A. Saksak

Ms Cynthia Thomas

Appellants appear in persons

<Inspector Wilson D. Garae for the Public Prosecutor

The appellants seek leave to appeal out of time. On 3^rd July 2000 the aant appeared before tore the Senior Magistrate’s Court in Luganville charged with unlawful assembly contrary to section 69 and with intentional assault contrary to section 107(b) of the Penal Code Act [CAP.135]. They all pleaded guilty and fined as follows:-

(a) &nnsp;&&nsp;;&nspp;&nssp; sp; Nevu Oseih – VT7,000 fine, VT500 Prosecution costs and VT41.666.67 as compensation to victim. In default, imprisonment for 14 weeks.

nbsp; p; &nbp; &nbssp; pan>Joseph Seph Serai –rai – VT7,000 fine, VT500 Prosecution costs and VT41.666.67 as damages. In default, impriso for eks.

lass=ormalle="margin-left: 36.0pt;.0pt; marg margin-toin-top: 1;p: 1; marg margin-boin-bottom: 1">

(c) &nnsp;&&nsp;;&nspp;&nssp;&nsp; Michel NevT3,0VT3,000 fine, VT500 costs and VT41.666.67 as da. defaimprint foeeks.n>

(d) &nnsp;&&nsp;;&nspp; s Ronald Sapo – VT3,000 fine, VT500 costs and VT41.666.67 as damages. In default, imprisonment for 6 weeks.

(e) &bsp; ;&nbssp;&nbp; &nsp; ;&nbpp; &nnsp;&&nsp; Selial E–fre – VT3,000 fine, VT500 costs and VT41.666.67 as damages. In default, imprisonment for 6 weeks.

(f) &nnsp;&&nsp;;&nspp;&nssp;&nsp; an>Apme Sekem – VT7,00T7,000 fine, VT500 costs and VT41.666.67 as damages. In default, sonmer 14 . clasoNormal" style="margin-top: 1; mar; margin-bgin-bottom: 1">

The appellants’ applin for leave was filed by the Public Solicitor’s Office on 23^rd NovemNovember, 2000 together with the Notice of Appeal and the Memorandum of Appeal. Their grounds of appeal are:-

lass="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> “That the sentence imposed manifestly excessive.”

The following Particulars are provided –

“(a) &nbhen the appellantllants ants appeared before the Magistrates Court in Luganville on 3^rd July 2000, and were convicted on all charges of unlawful assembly …… and inonal lt ……aiding a pera person tson to como commit intentional assault contrary to sections 30 and 107 (c) of the Penal Code Act [CAP.135], the trial judge erred in applying a trend set by previous cases which are not similar nor the same as the appellants’ case.

(b)

(c) &nnsp;&&nsp;;&nspp;&nssp;&nsp;

(d) &nnsp;&&nsp;;&nspp;&nssp;&nsp; The judle faie failed to give weight or sufficient weight to the matters submitted in mitin.”

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No officer from the PuSolicitor’s Office is present to present the appellants’ application. Nevu Oseih ther therefore spoke on behalf of all the appellants. When asked as to the reason for the late application he tells the court that a day after the appellants were convicted and sentenced they gave instructions to Mr Hillary Toa to appeal on their behalf. He did not do so until November 2000.

Inspector Garae however submits that as the appellants were advised of their rights of appeal and they failed to do so within the period allowed by law, the court should dismiss the application for leave to appeal out of time.

p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The Court has powers under section 201(6) of the Act to extend time. This section reads-

“The appeal court shall have power to extend any time herein provided ided for the

taking of any necessary step in appeal, as it may consider fit.”

I am satisfied that the appellantk necessary steps to lodge an appeal however it was twas the fault or omission of their solicitor that such appeal was not lodged in time. Under those circumstances it is my opinion that the appellants are entitled to leave to appeal out of time and I according grant them leave.

class="MsoBoMsoBodyText" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> I should however point out that this leave is granted to allow thellants to appeal against tnst the order of damages in the total sum of VT200.000. I have perused the record of the case in relation to the fines imposed and find no sufficient grounds for interferring with the orders of the Court below. Indeed it is my opinion that the fines imposed on each appellant is on the lower side and the appellants stand a high risk of the fines being increased on appeal. Pursuant therefore to the powers of the Court stipulated in section 204(1) of the Criminal Procedure Code Act [CAP.136], I hereby summarily dismiss the appellants’ appeal in relation to the excessiveness of their fines. I accordingly allow their appeal in respect only of the damages order of the court blow. I direct that the appeal be adjourned today and be re-listed on a suitable date.

I hereby uphold the Magistrate’s Couder in respect of the fines imposed on each appellantllant as follows:-

ass="MsoNoMsoNormal" style="text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1"> (1)&nnbsp; Nevu Os&ih -;&bspp;&bssp&nbsp VT7.000 – Fine + – 00 – Costs. In default 14 weeks imprisonment.

(2)&>(2) Joseph Serai - .000 e + VT + VT500 – 00 – Costs. In default 14 weeks imprisonment.

(3) ; Michel -evu p;nbsp; VT3.000 – Fine + VT500 – Costs. In default 6 weeks imprisonment.

(4) Ronald Sapo -;nbsp 3.0VT3.000 – Fine + VT500 – Costs. In default 6 weeks imprisonment.

(5) & p; Sslial lial Eafre afre - &nbbsp; VT3.0003.000 – Fin– Fine + VT500 – Costs. In default 6 weeks imprisonment.

(6)  p; Asp; Aime Sekem - VT7.000 – Fine + VT500 – 00 – Costs. In default 14 weeks imprisonment.

I Order each appellant to pay these fines and costs within 14 days from the date of this judgement.

DATED at Luganville this 26^th of February, 2001.

BY THE COURT

OLIVER A. SAKSAK

Judge