Home | Databases | WorldLII | Search | Feedback Court of Appeal of Fiji

Subramani v State [2015] FJCA 102; AAU0112.2014 (13 August 2015)

IN THE COURT OF APPEAL
[On Appeal from the High Court]

CRIMINAL APPEAL NO. AAU0112 OF 2014
[High Court Criminal Case No. HAC102 of 2012]

BETWEEN:

SUBRAMANI
Appellant

AND:

THE STATE
Respondent

BEFORE : Hon. Justice D. Goundar
Counsel : Mr. J. Savou for the Appellant
Mr. V. Perera for the Respondent

Date of Hearing : 5 August 2015
Date of Ruling : 13 August 2015

RULING

[1] This is an application for leave to appeal against sentence. The application was handed to the Department of Corrections within time, but by the time the application was forwarded to the registry, the appeal period had expired and the appeal was late by about three weeks.

[2] The appellant was charged with one count of penile rape of a 11-year old girl. He pleaded not guilty when he was arraigned on the charge. After the victim had given evidence, the appellant changed his plea to guilty. He was convicted and sentenced to 11 years and 9 months' imprisonment with a non-parole period of 10 years.

[3] The sole ground of appeal is:

The learned Trial Judge erred in principle and also erred in exercising his sentencing discretion to the extent that the non-parole period is too close to the head sentence resulting in much more severe punishment.

[4] In Paula Tora v The State unreported Crim. App. No. AAU 0063/2011; 27 February 2015, Calanchini P said at [2]:

The purpose of fixing the non-parole term is to fix the minimum term that the Appellant is required to serve before being eligible for any early release. Although there is no indication in Section 18 of the Sentencing and Penalties Decree 2009 as to what matters should be considered when fixing the non-parole period, it is my view that the purposes of sentencing set out in Section 4(1) should be considered with particular reference to rehabilitation on the one hand and deterrence on the other. As a result the non-parole term should not be so close to the head sentence as to deny or discourage the possibility of rehabilitation. Nor should the gap between the non-parole term and the head sentence be such as to be ineffective as a deterrent. It must also be recalled that the current practice of the Corrections Department, in the absence of a parole board, is to calculate the one third remission that a prisoner may be entitled to under section 27(2) of the Corrections Service Act 2006 on the balance of the head sentence after the non-parole term has been served.

[5] In Tora the offender was sentenced to 8 years' imprisonment with a non-parole period of 7 years for aggravated robbery. The Court of Appeal said the 1 year gap did not provide sufficient scope for rehabilitation of the offender.

[6] In the present case, the gap between the head sentence and the non-parole period is 1 year and 9 months. In my judgment, the question whether this period is too close to the head sentence and has not taken into consideration the prospect of rehabilitation for the appellant is an arguable point.

[7] Result
Extension of time granted.
Leave to appeal sentence granted.

..........................................
Hon. Mr. Justice Daniel Goundar
JUSTICE OF APPEAL

Solicitors:
Office of the Legal Aid Commission for the Appellant
Office of the Director of Public Prosecutions for the Respondent