|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the Magistrates’ Court]
CRIMINAL APPEAL NO.AAU 0009 of 2018
[In the Magistrates’ Court at Suva Case No. 374/16]
BETWEEN:
APENISA VUALILI
Appellants
AND:
STATE
Respondent
Coram : Prematilaka, JA
Counsel : Mr. J. Rabuku for the Appellant
: Dr. A. Jack for the Respondent
Date of Hearing : 25 January 2021
Date of Ruling : 26 January 2021
RULING
[1] The appellant had been charged in the Magistrate’s court of Suva exercising extended jurisdiction on a single count of aggravated robbery contrary to section 311(1)(a) of the Crimes Act, 2009 committed on 20 February 2016 at Suva in the Central Division. The information read as follows.
‘AGGRAVATED ROBBERY: contrary to section 311(1)(a) of the Crimes Decree Number 44 of 2009
Particulars of Offence – APENISA VUALILI: with others on the 20th day of February, 2016 at Suva in the Central Division, used force on one SALVIN KUMAR before robbing him of his Nokia Lumia phone valued at $150.00 and a Black Leather Wallet containing $100.00 and Assorted cards total value of $250.00 the property of one SALVIN KUMAR.’
[2] Upon conclusion of the trial, the learned Magistrate had convicted the appellant as charged in his judgment dated 31 November 2017 and sentenced him on 25 January 2018 to 07 years and 10 months of imprisonment with a non-parole term of 07 years and 04 months.
[3] The appellant had filed a timely petition of appeal only against conviction on 25 January 2018. However, he had later applied to abandon the appeal against conviction on 25 January 2021 by filing an application in Form 3. His solicitors, Law Solutions had filed summons seeking enlargement of time to appeal out of time against sentence, the appellant’s affidavit and amended grounds of appeal on 03 September 2020. The delay is over 02 year and 07 months. Written submissions had been filed on 23 September 2020. The respondent had filed its written submissions on 28 September 2020.
[4] Presently, guidance for the determination of an application for extension of time within which an application for leave to appeal
may be filed, is given in the decisions in Rasaku v State CA, 0013 of 2009: 24 April pril 2013
[5] In Kumar&;the Supreme Court held
‘[4] Appellate courts examine five factors by way of a principled approach to such applications. Those facare:
(i) The reason for the failure to file file within time.
(ii) The length of the delay.
(iii) Whether there is a ground of merit justifying the appellate court's consideration.
(iv) Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?
(v) If time is enlarged, will the Respondent be unfairly prejudiced?
[6] Rasaku the Supreme Courther heer held
‘These factors may not be necessarily exhaustive, but they are certainly convenient yardsticks to assess the merit of an cation for enlargement of time. Ultimately, it is for the cthe court to uphold its own rules, while always endeavouring to avoid or redress any grave injustice that might result from the strict application of the rules of court.’
[7] The remarks of Sundaresh Menon JC in Lim Hong Kheng v Public Prosecutor [2006] SGHC 100 shed some more light as to how the appellate court would look at an application for extension of time to appeal.
‘(a)........
(b) In particular, I should apply my mind to the length of the delay, the sufficiency of any explanation given in respect of the
delay and the prospects in the appeal.
(c) These factors are not to be considered and evaluated in a mechanistic way or as though they are necessarily of equal or of any
particular importance relative to one another in every case. Nor should it be expected that each of these factors will be considered
in exactly the same manner in all cases.
(d) Generally, where the delay is minimal or there is a compelling explanation for a delay, it may be appropriate to subject the prospects
in the appeal to rather less scrutiny than would be appropriate in cases of inordinate delay or delay that has not been entirely
satisfactorily explained.
(e) It would seldom, if ever, be appropriate to ignore any of these factors because that would undermine the principles that a party
in breach of these rules has no automatic entitlement to an extension and that the rules and statutes are expected to be adhered
to. It is only in the deserving cases, where it is necessary to enable substantial justice to be done, that the breach will be excused.’
[8] Sundaresh Menon JC also observed
‘27......... It virtually goes without saying that the procedural rules and timelines set out in the relevant rules or statutes are there to be obeyed. These rules and timetables have been provided for very good reasons but they are there to serve the ends of justice and not to frustrate them. To ensure that justice is done in each case, a measure of flexibility is provided so that transgressions can be excused in appropriate cases. It is equally clear that a party seeking the court’s indulgence to excuse a breach must put forward sufficient material upon which the court may act. No party in breach of such rules has an entitlement to an extension of time.’
[9] Under the third and fourth factors in Kumar, test for enlargement of time now is ‘real prospect of success’. In Nasila v State [2019] FJCA 84; AAU0004.2011 (6 June 2019) the Court of Appeal said
‘[23] In my view, therefore, the threshold for enlargement of time should logically be higher than that ave tove to appeal and inr to obtain enlargemergement or extension of time the appt must satisfy tsfy this court that his appeal noy has16;me#8217; and would probably succeed but abut also hlso has a ‘real prospect of suof success’ (see
Leni>Length of delay
[10] As already stated the delay is over 02 years and 07 months and very substantial.
[11] In Nawalu v State [2013] FJSC 11; CAV0012.12 (28 August 2013) the Supreme Court said that for an incarcerated unrepresented appellant up to 03 months might persuade
a court to consider granting leave if other factors are in his or her favour and observed.
‘In Julien Miller v The State A6/07 (23rd October 2007) B07) Byrne J considered 3 months in a criminal matter a delay period
which could be considered reasonable to justify the court granting leave.’
[12] However, I also wish to reiterate the comments of Byrne J, in Julien Miller v The State AAU0076/07 (23 Oc 2007) tha) that
‘... that the Courts have said time and again that the rules of time limits must be obeyed, otherwise the lists of the Courts
would be in a state of chaos. The law ts litigants and would-be a-be appellants to exercise their rights promptly and certainly,
as far as notices of appeal are concerned within the time prescribed by the relevant legislation.’
[13] The appellant’s (who had been unrepresented in the Magistrates court) excuse for the delay is that he had thought that the Court of Appeal would deal with his sentence as well when considering his appeal against conviction. He cites his written submissions signed on 15 March 2020 (received by CA registry on 18 May 2020) where he in person had dealt with sentence as well (since some other inmates similarly placed had been given more lenient sentences which he discovered in January 2020) as evidence of his above assertion. He had further submitted that it was after his wife residing abroad managed to obtain assistance of a private legal counsel that it was possible to file formal papers for seeking an extension of time to appeal against sentence.
[14] Undoubtedly, the appellant had expressed a clear intention to appeal against conviction within time. However, when it comes to the sentence, on his own assertion it looks as if he had decided to challenge the sentence only in January 2020 for whatever the reason. Therefore, I cannot believe his assertion that he had thought that his conviction appeal would be enough to canvass the sentence as well and that is the reason why he had not appealed against sentence in a timely manner.
Merits of the appeal
[15] In State v Ramesh Patel (AAU 2 of 2002: 15 November 2002) this Court, when the delay was some 26 months, stated (quoted in Waqa v State [2013] FJCA 2; AAU62.2011 (18 January 2013) that delay alone will not decide the matter of extension of time and the court would consider the merits as well.
"We have reached the conclusion that despite the excessive and unexplained delay, the strength of the grounds of appeal and the absence of prejudice are such that it is in the interests of justice that leave be granted to the applicant."
[16] Therefore, I would proceed to consider the third and fourth factors in Kumar regarding the merits of the appeal as well in order to consider whether despite the very substantial delay and the absence of a convincing explanation, the prospects of his appeal would warrant granting enlargement of time.
[17] The grounds of appeal against sentence urged on behalf of the appellant are as follows.
Sentence
Ground 1 That the Appellant’s amended grounds of appeal are as follows:-
[18] The facts of the case as summarised by the Magistrate in the judgment are as follows.
‘On 20/2/2016 at about 4.00 am the complainant was walking on a street in Suva City, having spent the night in a night club, when he was confronted by 3 youths. These youths who came behind pushed him out and took away his wallet and the mobile phone all of which were in his pocket. They passed went and entered into a night club by the name of “Temptation” as the complainant notice. The complainant did not have money to go home and he managed to find money from a friend. He then stopped a police vehicle on the road and told about the incident. PW-2 went to the “Temptation” nightclub accompanied by the complainant who was asked to identify the persons. The complainant identified the accused. He said that the accused was wearing a green T-Shirt and 3 quarter pants when he was confronted. The dress was the same when he was found inside the Night Club.’
01st (a), (b) and (c) grounds of appeal
[19] It is convenient to consider all grounds of appeal together as they are interconnected and collectively challenge the sentence as excessive and harsh due to the wrong tariff being applied by the Magistrate.
[20] Further guidelines to be followed for leave to appeal when a sentence is challenged in appeal are well settled (vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013] 14; House v The King [1936] HCA 40; ;(1936) 55 CLR 499, Kim Nam Bae v Th v The State Criminal Appeal U0015 and
[21] The Learned Magistrate had applied the sentencing tariff set in Wise v State [2015] FJSC 7; CAV0004.2015 (24 April 2015).e. 08 to 16 years of imprisonment and picked the starting point at the lower end of 08of 08 years. He had not enhanced the sentence on account of any aggravating features and after the period of remand was taken into account the ultimate sentence had been 07 years and 10 months.
[22] The appellant had deemed the sentence to be harsh and excessive on the basis that the appropriate tariff was 18 months to 03 years.
[23] The sentencing tariff in Wise was set in a situation where the accused had been engaged in home invasion in the night with accompanying violence perpetrated on the inmates in committing the robbery. The factual background in Wise was as follows.
‘[5] Mr. Shiu Ram was aged 62. He lived in Nasinu and ran a small retail grocery shop. He closed his shop at 10pm on 16th April 2010. He had a painful ear ache and went to bed. He could not sleep because of the pain. He was in the adjoining living quarters with his wife and a 12 year old granddaughter.
[6] At around 2.30am he heard the sound of smashing windows. He went to investigate and saw the door of his house was open. Three persons had entered. The intruders were masked. Initially Mr. Ram was punched and fell down. One intruder went up to his wife holding a knife, demanding her jewellery. There was a skirmish in which Mr. Ram was injured by the knife. Another of the intruders had an iron bar.
[7] The intruders got away with jewellery worth $550 and $150 cash. Mr. Ram went to hospital for his injuries. He had bruises on his chest and upper back, and a deep ragged laceration on the left eye area around the eyebrow, and another laceration on the right forehead. The left eye area was stitched.’
[24] It appears to me that the factual scenario in this case constitutes an act of ‘street mugging’ where sentencing tariff
had been recognized as 18 months to 05 years and cannot be equated at all with an act of aggravated robbery involving ‘home
invasion’.
[25] In Raqauqau v State [2008] FJCA 34; AAU0100.2007 (4 August 2008) the complainant, aged 18 years, after finishing off work was walking on a back road, when he was approached
by the two accused. One of them had grabbed the complainant from the back and held his hands, while the other punched him. They stole
$71.00 in cash from the complainant and fled. The Court of Appeal remarked
‘[11] Robbery with violence is considered a serious offence because the maximum penalty prescribed for this offence is life imprisonment. The offence of robbery is so prevalent in the community that in Basa v The Sta> Cri0;Criminal Appeal No.AAU0024 of 2005 (24 March 2006) the Court pointed out that the levels of sentences in robbery cases should be based on English authorities rather than those of New Zealand, as had been the previous ice, because the sentence pnce provided in Penal Code is si to that in English lesh legislation. In England the sentencing range depends on the forms or categories of robbery.[1e leading Englishglish authority on the sentencing principles and starting points in cases ases of street robbery or mugging is the case of Attorney General&;s Refe References (Nos. 4 and 7 of 2002) (Lobhan, Sawyers and James) (the so-called ‘e phoe phones’ judgment). The particular offences dealt in the judgment were characterized by serious threats of violence y the use of weapons to intimidate; it was the element of violence in the course of robberybbery, rather than the simple theft of mobile telephones, that justified the severity of the sentences. The court said that, irrespective of the offender’s age and previous record, a custodial sentence would be the court’s only option for this type of offence unless there were exceptional circumstances, and further where the maximum penalty was life imprisonment:
[26] The sentencing tariff for street mugging was once again discussed in Tawake v State [2019] FJCA 182; AAU0013.2017 (3 October 2019) where the complainant was going home at about 4.30 p.m. when the appellant with another person had called him and asked for money and when told that he had no money, the appellant had hit him with a knife and the other had assaulted him with an iron rod. After assaulting the complainant the appellant had taken $20 from him and run away. The Court of Appeal having discussed Raqauqau and other decisions said as follows.
‘[35] The adoption of the tariff in Wise (Supra) pra) does not seem to be appropriate to the present case as it does not come within the nature of a home invasion category of aggravated robbery s a sion which would come within the type of street muet mugging cases. Considering the objectivective seriousness of the offending and the degree of culpability, the harm and loss caused to the complainant it would be appropriate to follow the sentencing pattern suggested for instances of street mugging
[27] Again the Court of Appeal in Qalivere v State [2020] FJCA 1; AAU71.2017 (27 February 2020) dealt with a case of street mugging in the following terms.
‘[15] The learned single Justice of Appeal, in giving leave to appeal, distinguished facts in We Wise (supra)upra), which ied a hd a home invasion as opposed to the facts in Raqauqatate&#/b> [2008] FJCA 34CA 34; AAU0100.2007 (04 August 2008 2008), where aggravated robbery was coed onrson on the streestreet by two accused using low-level phys physical violence.
[16] Low threshold robbery, with or without less physical violence, is sometimes referred to as street-mugging informally in c parlance.
‘[19] Upon a on a consiconsideration of the matters, as set-out above, I am of the view that the ed Magistrate had acted a upon wrong principle when he applied the tariff set for an entirentirely different category of cases to the facts of this case, which involved a low-threshold robbery committed on a street with no physical violence or weapons. When the learned Magistrate chose the wrong sentencing range, then errors are bound to get into every other aspect of the sentencing, including the selection of the starting point; consideration of the aggravating and mitigating factors and so forth, resulting in an eventual unlawful sentence.
[28] Therefore, picking 08 years as the starting point by the Magistrate based on Wise may demonstrate a sentencing error having a real prospect for the appellants to succeed in appeal regarding his final sentence. It is the starting point of 07 years based on Wise that had led to the current sentence which appears to be harsh and excessive for the act of ‘street mugging’ the appellant was convicted.
[29] On the other hand, I am conscious of the fact that it is the ultimate sentence that is of importance, rather than each step in the reasoning process leading to it. When a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step in the reasoning process that must be considered (vide Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006). In determining whether the sentencing discretion has miscarried the appellate courts do not rely upon the same methodology used by the sentencing judge. The approach taken by them is to assess whether in all the circumstances of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies within the permissible range [Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015)].
[30] When the appellant’s sentence of 07 years and 11 months is considered, given the facts of this case I am of the view that he may have a real prospect of success in appeal as far as his sentence is concerned. However, it is the full court that has to consider and decide what the appropriate sentence should be in terms of section 23 (3) of the Court of Appeal Act.
Prejudice to the respondent
[31] No specific prejudice would be caused to the respondent by the enlargement of time.
Order
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJCA/2021/20.html
