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Rokodoi v State [2015] FJCA 107; AAU0055.2014 (13 March 2015)

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

CRIMINAL APPEAL NO: AAU 0055 OF 2014
[High Court Case No: HAC 005/2012 Lab]

BETWEEN:

MASIMATA ROKODOI
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Mr. M. Yunus for the Appellant
Mr. L.J. Burney for the Respondent

Date of Hearing : 3 November 2014
Date of Ruling : 13 March 2015

RULING

[1] On the 20 July 2012, the appellant was sentenced to 5 years' imprisonment for aggravated robbery by the Magistrates' Court exercising an extended jurisdiction. On 18 June 2013, he filed an untimely appeal against sentence.

[2] After numerous adjournments, the appellant engaged counsel and filed the following amended grounds:

1. The Learned Sentencing Magistrate erred in fact when she stated at paragraph 10 that injury was caused to the complainant by the use of the cane stock when there was no evidence of the same.
   
2. The Learned Sentencing Magistrate erred in law when she failed to separately deduct the three (3) weeks which the petitioner had spent in remand.
   
3. The Learned Sentencing Magistrate erred in law when she re-accounted the element of the use of physical violence at paragraph 14 of the sentence as an aggravating feature of the offending.
   
4. The Learned Sentencing Magistrate failed to separately discount the guilty plea of the petitioner when she considered the same as a mitigating factor.
   
5. The Learned Trial Judge (sic) erred in fact and law when he failed to justify the imposition of a non-parole period considering the circumstances of the Appellant.
   

[3] Counsel for the appellant accepts that the length of the delay is substantial but argues the appeal has merits.

[4] Counsel for the State does not oppose an enlargement of time. Mr. Burney submits that there is no prejudice to the State if an enlargement of time is granted.

[5] Ground 1 is not arguable because that learned Magistrate in her sentencing remarks did not state that injury was, in fact, caused.

[6] The appellant was remanded for 3 weeks before sentencing. The learned Magistrate gave sufficient weight to the remand period. There was no need to engage in a mathematical exercise to give a separate discount for the remand period. Ground 2 is not arguable.

[7] Counsel for the State fairly concedes that the use of physical violence (as opposed to the degree of violence) should not have been treated as an aggravating factor in the circumstances of this case. Ground 3 is arguable.

[8] The appellant was given somewhat less than a 25 percent deduction for his mitigating factors which included his guilty plea. The State concedes the sufficiency of discount given to the guilty plea is an arguable point.

[9] Ground 5 is not an arguable point. There is no obligation on the sentencing court to give reasons for the non-parole period because the fixing of non-parole period is mandatory under section 18(1) of Sentencing Penalties Decree 2009 (Savou v State unreported Cr. App. No. AAU090 of 2012; 5 December 2014 at para.14).

Result
[10] Extension of time granted.

[11] Leave to appeal against sentence is granted on grounds three and four only.

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

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