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Shankar v State [2015] FJCA 162; AAU0026.2003 (1 December 2015)

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

CRIMINAL APPEAL NO. AAU0026 of 2003
[High Court Case No. HAC 0014 of 2001]

BETWEEN:

ALBERTINO SHANKAR
Appellant

AND :

THE STATE
Respondent

Coram : Goundar JA
Counsel : Appellant in person
Ms P. Madanavosa for the Respondent

Date of Hearing : 26 October 2015
Date of Ruling : 1 December 2015

RULING

[1] This is an application for leave to appeal against sentence pursuant to section 21(1)(c) of the Court of Appeal Act, Cap. 12. Section 21 (1) (c) states:

"Right of appeal in criminal cases

21 (1) A person convicted on a trial before the High Court may appeal under this Part to the Court of Appeal;

(c) with the leave of the Court of Appeal against the sentence passed on his conviction unless the sentence is one fixed by law."

[2] The appellant and his co-offender were jointly charged with one count of murder. They were both convicted after trial, and on 4 July 2003, sentenced to mandatory life imprisonment with a recommendation that each serve a minimum term of 17 years imprisonment by the High Court in Suva. They both appealed against conviction. That appeal was dismissed by the Court of Appeal on 25 November 2005. They sought special leave from the Supreme Court to appeal against conviction. On 19 October 2006, special leave was refused. At all stages of the proceedings, the appellant and his accomplice were represented by counsel.

[3] In the initial Notice of Appeal to the Court of Appeal, there is a brief reference to the word 'sentence' in a heading, suggesting that the appeal is against both conviction and sentence. But the grounds of appeal advanced by the appellant only concerned conviction. There is nothing in the court file to suggest that the appellant had appealed against sentence and was overlooked by the Court. The appellant was present at the hearings. If the Court had mistakenly overlooked that the appellant had also appealed against sentence, he surely would have brought to the attention of the Court through his counsel.

[4] Furthermore, the appellant was refused special leave in 2006. He filed his Notice to appeal against sentence on 20 November 2012, after exhausting his right of appeal in the Supreme Court six years ago. The total delay from the date of sentence is about nine years. The length of the delay is no doubt substantial and the appellant's reasons for the late appeal are not good.

[5] The Notice seeks review of sentence, but subsequent written submissions filed by the appellant indicates that he is seeking leave to appeal against the length of the minimum term recommended by the trial judge on the grounds:

1. The term is harsh and excessive when compared to other cases.
2. The minimum term is unlawful.
3. The sentence is wrong in principle.
   

[6] The sentence for murder is fixed. The sentence is mandatory life imprisonment. There is no right of appeal against a fixed sentence. At the time the appellant committed the murder, the trial judge had discretion to recommend a minimum term to serve pursuant to section 33 of Penal Code, Cap. 17. Clearly, the recommendation of the trial judge does not prevent early release by the executive if the conduct of the appellant justifies such a release. It is also settled in this jurisdiction that there is no right of appeal against a recommended term. In Yunus & Khan v The State unreported Cr. App. No. CAV0008 of 201; 24 April 2013, the Supreme Court said at [34]:

"In our view, there was no jurisdiction for the Court of Appeal to entertain an application for leave to appeal against a sentence that is one "fixed by law" within the meaning of that phrase in section 21(c) of the Court of Appeal Act and was not appealable. In any event, the purported "appeal against sentence" lodged by the Appellants was only directed at the recommendation of the trial judge, which was in any event not appealable as it was administrative and not judicial in character, and not binding on a court of law or even on the executive."

[7] Given the appellant has no right of appeal against sentence, I would grant an extension of time, but dismiss the appeal under section 35(2) of the Court of Appeal Act, Cap. 12.

Result
[8] Extension of time granted.
[9] Appeal dismissed under section 35(2) of the Court of Appeal, Cap. 12.

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

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