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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the Magistrates’ Court]
CRIMINAL APPEAL NO.AAU 100 of 2019
[In the Magistrates’ Court at Taveuni Case No. 288/12]
BETWEEN:
OSEA KOLI
Appellant
AND:
STATE
Respondent
Coram : Prematilaka, JA
Counsel: Mr. M. Fesaitu for the Appellant
Mr. R. Kumar for the Respondent
Date of Hearing: 01 February 2021
Date of Ruling: 02 February 2021
RULING
[1] The appellant had been charged in the Magistrate’s court of Taveuni exercising extended jurisdiction on a single count of aggravated robbery contrary to section 311(1)(a) of the Crimes Act, 2009 committed on 15 December 2012 at Naiyalamudu , Taveuni in the Northern 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 – OSEA KOLI and SITIVENI VESIKULA on 15th day of December, 2012 at Naiyalamudu, Taveuni in the Northern Division, robbed off 75.00 from Samuela Wailevu.
[2] The appellant had pleaded guilty and the learned Magistrate had convicted the appellant as charged and sentenced him on 21 October 2016 to 07 years and 10 months of imprisonment with a non-parole term of 05 years.
[3] The appellant had filed an untimely notice of appeal only against sentence on 25 June 2019. The delay is about 02 years and 07 months. The Legal Aid Commission had filed a notice of motion seeking enlargement of time to appeal out of time against sentence, the appellant’s affidavit, amended grounds of appeal and written submissions on 14 October 2020. The respondent had filed its written submissions on 13 November 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 Rav State CAV0009, 001, 0013 of 204 A 24 April 2013 [2013] FJSC 4, Kumarate; v State CAV0001 of 2009: 21 August 2012  [2012] FJSC 17.
>
‘[4] Appellate courts examine five factors by way of a principled approach to such applicat Thostors are:
(i) The reason for the fthe failure to file within time.
(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 me Court further heer held
‘These factors may not be necessarily exhaustive, but they are certainly convenient yardsticks to assess the mef an application for enlargement of time. Ultimately, it isit is for the 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 thaleave tove to appeal and der to obtain enlargemergement or extension of time the aant musisfy court ourt his apis appeal not only has ‘merits’ and would probably succeed butd but also also has a ‘real prospect of succe217; (see R v Mi/b>&<160; [2002] QCA 56 (1 March 2002) on a the groe grounds of appeal......’
Length of delay
[10] As already stated the delay is about 02 years and 07 months and very substantial. Howevhe respondent had pointed oted out that the appellant’s appeal in person had been filed in the High Court of Labasa under HAA 009 of 2018 and it had been dismissed for lack of jurisdiction on 03/04 April 2018 but the High Court judge had advised the appellant to file his appeal in the correct forum. Thus, it appears that the appellant had in deed filed an appeal in the year 2018, belatedly though, prior to 03/04 April 2018. The delay, therefore, appears to be much less but is still 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 Stat0;A160;AAU0076/07 (23rd October 2007) Byrne J considered 3 months in a criminal matter a delay
period which could be considered reasonable to justify the court granting leave.’
[12] Hr, I also wish to reiterateerate the comments of Byrne J, in Julien Miller v The State AAU0076/0 October 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 Courtld
be in a state of chaos. The law expects litigants and wond would-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 been unaware of legal implications of failure to file a timely appeal and that he had been held in Taveuni Correctional Centre in the island after being sentenced by court and had limited access to lawyers. His attempt to communicate with LAC also did not yield a response from its Labasa Office. Therefore, finally he had to file his appeal in person out of time.
Merits of the appeal
[14] In State v Ramesh Patel (AAU 2 of 200 November 2002 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."
[15] 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 substantial delay and the absence of a convincing explanation, the prospects of his appeal would warrant granting enlargement of time.
[16] The ground of appeal against sentence urged on behalf of the appellant is as follows.
Sentence
Ground 1 That the learned Magistrate erred in law by imposing a sentence deemed harsh and excessive without having regard to the sentencing guideline and applicable tariff for the offence (aggravated robbery) of this nature.
[17] The summary of facts admitted by the appellant revealed the follows:
01st ground of appeal
[18] 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] FJSC 14; House v The King [1936] HCA 40; &(193 CLR 499, Kim Namm Nam Bae v The State Criminaeal No.AAU0015 and (i) Acted upon apon a wrong principle; [1e Learneearned Magistrate had applied the sentencing tariff set in Wise v State [2015] FJSC 7; CAV0004.2015 (24 April 2015) i.e. 08 to 16 years of imprisonment and picked tarting point at 09 years aars and 06 months. He had not enhanced the sentence on account
of any aggravating features and after allowing a discount of 01 year and 06 months for mitigating factors and the period of remand
was taken into account the ultimate sentence had been 07 years and 10 months. [20] The appellant had deemed the sentence to be harsh and excessive on the basis that the appropriate tariff was 18 months to 03
years and the Magistrate had applied the wrong tariff. [21] 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.’ [22] 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 with an act of aggravated robbery involving ‘home
invasion’. ‘[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 State&#ri0;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 authoritieher than those of New Zealand, as had been the previous pras practice, because the sentence provided
in Penal Code is simil that in English lesh legislation. In England the sentencinge depends on the forms or categories of robbery. [12] The leading English aush authority on the sentencing principles tarting points in cases of s of street robbery or mugging is
the case of Attorney GeneralRRefe References (Nos. 4 and 7 of 2002) (Lobhan, Sawyers and James) (the so-called ‘mobhoe phones’ judgment). The particular offences dealt e judgment were characterized by serious threats
of violencolence and by the use of weapons to intimidate; it was the element of violin the course of robbery, rry, 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: [24] 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<160;(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 and is a situation which would come within the type of street mugging cases. Considering the objective 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 [25] 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
(ii) Allowed extraneous or irrelevant matters to guide or affect him;
(iii) Mistook the facts;
(iv) Failed to take into account some relevant consideration.
[23] 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
[16] Low threshold robbery, with or without less physical violence, is sometimes referred to as street-mugging informally inon parlance.
‘[19] Upon a consideration of the matters, as set-out above, I am of the view that the learned Magistrate had acted a upon wrong principle when he ap the tariff set for an enti entirely 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.
[26] Therefore, picking 09 years and 06 months 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 09 years and 06 months 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.
[27] 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)].
[28] When the appellant’s sentence of 07 years and 10 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 though some degree of violence had been inflicted on the complainant leading to a laceration of 04 cm long and 02 cm deep below the left eye. 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
[29] No specific prejudice would be caused to the respondent by the enlargement of time.
Order
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
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