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Volivale v State [2012] FJCA 28; AAU0032.09 (3 May 2012)

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

CRIMINAL APPEAL NO. AAU0032 of 2009
[High Court Criminal Action No. HAC 0030 of 2005]

BEFORE THE RESIDENT JUSTICE OF APPEAL, HON. JUSTICE WILLIAM MARSHALL

BETWEEN:

SAILOSI VOLIVALE
Appellant

AND:

THE STATE
Respondent

COUNSEL: Appellant in Person
Mr P. Bulamainaivalu for Respondent

Date of Hearing: Wednesday, 23rd March 2011
Date of Ruling: Thursday, 3rd May 2012

RULING

1. I heard this application for an extension of time in which to appeal against conviction and sentence by Sailosi Volivale and for leave on 23rd March 2011.
   
2. Sailosi Volivale was convicted on the unanimous opinion of three assessors and the decision of Shameem J on 9th April 2009. He was sentenced to life imprisonment for the murder of Vikash Chandra during a home invasion robbery by night on 7th November 2004. He was sentenced to life imprisonment on 18th June 2009 with a fixed minimum sentence before parole of 18 years.
   
3. In his written sentencing judgment Justice Daniel Goundar said:
   

". . . [3] In the course of committing robbery, you stabbed Navin Chandra's son, Vikash Chandra, with a kitchen knife. You claimed that you acted in self-defence but your claim was rejected by the assessors and the trial judge.

[4] Vikash Chandra was a young man and married with a child. He died due to a penetrating stab wound on the abdomen. The size of the wound was 4.7cm x 1.4 cm. The wound was deep. . . .

. . .[6] I find the killing in this case a wanton disregard for a human life. You terrorized the victim's family with a group of men by invading his home at night time when the family was asleep. You robbed the family and then stabbed the victim to death.

[7] You have eight previous convictions since 1992. Four convictions are more than ten years old. I disregard those convictions. You have two convictions for robbery with violence. Your last two convictions are for robbery with violence and indecent assault. You are serving a total sentence of 7 years imprisonment for those offences. That sentence was imposed on 22 July 2008. You committed those offences while on bail in this matter. You have shown a total disregard for people's safety and security. By your conduct you have shown a propensity to use violence against members of the public.

[8] You are in your mid-thirties and single. You had a disadvantaged upbringing. Your parents separated when you were young. You have attained up to class six education. You have previously worked as a casual labourer. . . .

. . . [10] I take into account your disadvantaged upbringing as a mitigating factor. The aggravating factors are the group attack on a family in the security of their home, the use of a weapon to take away a human life, the non recovery of the stolen property, and the prevalence of this kind of offence in our society. Stern punishment should be imposed to denounce the public's disapproval of this kind of conduct that strike at the very heart of safety and security of the public.

[11] Taking all these matters into account, I sentence you to life imprisonment for murder, with a fixed minimum term of 18 years imprisonment that you must serve before being eligible for parole, 2 years imprisonment for burglary, and 10 years imprisonment for robbery with violence. . . ."

4. The only grounds advanced by Sailosi Volivale in respect of his applications are:
   

"[1] That the learned trial judge have erred in law in failing to express any remarks on my right to appeal to a higher court under section 28(1) of the Constitution.

[2] That the appellant is handicapped to cope with by law in appeal application and awaiting the long process of legal counseling for the application assistance. Since the full discretion of Fiji Court of Appeal question of law in appealing."

5. What happened in investigation and trial is as follows. Sailosi Volivale was not immediately arrested but a few months later police arrested him because they had received information saying that he was the perpetrator of the violence on Vikash during the robbery. That was on 2nd March 2005. When interviewed the police say he admitted being involved in the robbery and stabbing Vikash but claimed self defence saying that Vikash had grabbed his neck and was trying to strangle him. There was no identification of Sailosi Volivale as the perpetrator and no direct evidence. On the other hand a credible confession is strong evidence of guilt. At trial he gave sworn evidence and denied participation but did not explain where he was or what he was doing on 8th November 2004 between 12.30 a.m. and 2.30 a.m. He explained that the police had put him in fear and assaulted him and put pressure on him to sign the statement under caution. At the trial before Madam Justice Shameem and assessors he contested the statement in a voir dire but it was held to be voluntary and admissible. Although the principal issue was whether he was present at the robbery, the assessors were invited also to consider whether what Sailosi Volivale had said about acting in self defence when Vikash tried to strangle him might be accepted. This although in evidence Sailosi Volivale was clearly stating that what was alleged to have been said by him in the statement was not true.
   
6. In my view the summing up of the learned judge and her decision to invite the assessors to consider self defence as a defence was undoubtedly correct in law. It was also fair to all concerned. There is no doubt that Sailosi Volivale had a fair trial. He was found guilty because the learned trial judge found the statement to be admissible and then considered that she was satisfied beyond reasonable doubt that the stabbing was not the result of self defence because Sailosi Volivale was being strangled to death by Vikash.
   
7. There was a case to answer and on the evidence the decision of the trial judge was not "obviously and palpably wrong". It was a fair trial and a fair conviction. There was no miscarriage of justice.
   
8. The grounds put forward by Sailosi Volivale are unarguable. I have looked at the evidence and what happened at trial. I find no grounds upon which this conviction can be impeached.
   
9. As far as the sentence of Justice Goundar is concerned 18 years before being eligible is well within the correct range. If anything it is light for murder in the course of robbery with violence. All I need to say in conclusion on sentence is that the sentence is not wrong in principle.
   
10. Since there are no arguable grounds against conviction and sentence, I will not extend time in which to appeal. This intended appeal is 3-4 months late. It has no merits at all. In such circumstances the appeal court should not extend time. Since in my view any appeal against conviction and sentence has no chance of success I intend also to dismiss the appeal under section 35(2) of the Court of Appeal Act.
    

ORDERS

11. I order –
    
    • (1) That the time for appealing in respect of Sailosi Volivale's proposed appeal be not extended.
      
    • (2) That Sailosi Volivale's appeal in respect of conviction and sentence, having no chance of success, be dismissed under section 35(2) of the Court of Appeal Act.
      

William Marshall
Resident Justice of Appeal

Solicitors:
Appellant in Person
Office of the Director of Public Prosecutions for Respondent