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Dravo v State [2014] FJCA 131; AAU0004.2012 (1 August 2014)

IN THE COURT OF APPEAL
AT SUVA

CRIMINAL APPEAL NO. AAU 0004 OF 2012
(High Court Miscellaneous Action No. HAM 82 of 2011)

BETWEEN:

SITIVENI DRAVO
Appellant

AND:

THE STATE
Respondent

Coram: Chandra RJA
Counsel: Appellant in person.
Mr. M. Korovou for the Respondent

Date of Hearing: 1 July 2014
Date of Ruling: 1 August 2014

RULING

1. This is an application for leave to appeal against the decision of the High Court refusing leave to appeal out of time in respect of the sentence imposed on the Appellant by the Lautoka Magistrate's Court.
   
2. The Appellant was charged with one count of robbery at the Lautoka Magistrate's Court and on his pleading guilty he was convicted and sentenced to 6 years imprisonment with a non-parole period of 4 years.
   
3. His application to appeal out of time to the High Court was refused on 6 July 2011.
   
4. The Appellant has filed this application for leave to appeal on the following grounds:
   
   • (a) That the learned sentencing Magistrate erred in law when he did not direct himself on the current sentencing practice and applicable guideline judgment when sentencing the appellant.
     
   • (b) That the learned sentencing Magistrate erred in law and in fact when he failed to give adequate discount for the mitigating factors.
     
   • (c) That the sentence is harsh and excessive.
     
5. An appeal against such a decision has to be in terms of Section 22 of the Court of Appeal Act and should be on a question of law. No appeal lies in respect of a sentence imposed by the High Court unless the sentence was an unlawful one or was passed in consequence of an error of law.
   
6. The first ground of appeal is on the basis that the sentencing Magistrate did not direct himself on the current sentencing practice when imposing sentence.
   
7. The learned Magistrate had adopted the tariff set out in Sakiusa Basa v. State Criminal Appeal No. AAU0024 of 2005 (24th March 2006) which was 4 - 7 years.
   
8. The learned Magistrate had adopted 6 years as the starting point and added 12 months for the aggravating factors and deducted 6 months for the mitigating factors and 4 months for the guilty plea. A further 1 month had been reduced for time spent in remand and arrived at the sentence of 6 years imprisonment with a non-parole period of 4 years which sentence is well within the tariff.
   
9. The second ground of appeal is on the basis that adequate discount had not been given for mitigating factors.
   
10. As stated above the learned Magistrate had taken into account mitigating factors before imposing the final sentence.
    
11. The third ground is that the sentence is harsh and excessive.
    
12. Going by the sentences imposed currently in respect of the offence of robbery the sentence imposed on the Appellant cannot be said to be harsh and excessive.
    
13. As the grounds do not set out any arguable grounds of appeal and fail to satisfy the requirements of Section 22 of the Court of Appeal Act, the application for leave to appeal is refused.
    

Order of Court:
The Application for leave to appeal is refused.

Hon. Justice S. Chandra
Resident Justice of Appeal