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Rawaqa v The State [2005] FJCA 41; AAU0006.2005 (9 March 2005)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

Criminal Appeal No. AAU0006.2005
(High Court Criminal Case HAC007.2001S)

Between:

MOSESE RAWAQA
Applicant

And

THE STATE
Respondent

Applicant in person
D. Gounder with P. Bulamainaivalu for the Respondent

DECISION

On 1 November 2001 the Applicant was convicted of manslaughter in the High Court at Suva, after trial. The applicant who suspected the victim of stealing money from him punched her to death in a drunken rage. He was sentenced to nine years imprisonment.

He now seeks leave to appeal out of time and leave to appeal against the sentence.

The statutory appeal period expired on 30 November 2001. The Applicant’s excuse for not applying within time is that he has represented himself since the trial and was unaware of appeal procedures.

As appears from a letter sent to the Director of Public Prosecutions in November 2002 the Applicant’s principal complaint is not the length of the sentence imposed but the fact that he spent 9 months in custody on remand before being brought to trial on a charge of murder. He asserts that had he been charged with manslaughter he would have pleaded guilty.

Although the Judge’s sentencing remarks made clear that she took into account the period which the Applicant had served in custody before trial it may be noted that a nine month remand period represents over 12 months imprisonment when grossed up by the one third remission to which prisoners are ordinarily entitled.

While the excuse for not lodging an appeal within time is not particularly convincing I am of the view that, given the length of the sentence imposed and the fact that the Applicant is representing himself he should be given an opportunity to place his complaint before the full court. The fact that the appeal is well out of time should cause no inconvenience. Being merely an appeal against sentence the summing up and sentencing remarks which have already been typed out will constitute a sufficient record for appeal purposes.

RESULT

Leave granted to appeal against sentence out of time.

M.D. Scott
Resident Justice of Appeal

9 March 2005