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Varani v The State [2003] FJHC 202; HAM0007J.2003S (25 March 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO: HAM0007 OF 2003S

Between:

LEPANI VARANI
Appellant

And:

THE STATE
Respondent

Hearing: 24th March 2003
Judgment: 25th March 2003

Counsel: Appellant in Person
Mr S. Leweniqila for State

JUDGMENT

The Appellant made an application for leave to appeal out of time from his sentence of a total of 18 months imprisonment, imposed by the Nausori Magistrates’ Court on 26th July 2002. That application was refused, and the Appellant made a further application to the High Court. The High Court does not have jurisdiction to entertain such application. However the Appellant requested, and State counsel agreed, that the application be treated as an appeal from the learned Magistrate's refusal to enlarge time. I have proceeded on that basis.

The charges were as follows:

Case No: 243/02

Statement of Offence

LARCENY FROM PERSON: Contrary to Section 271 of the Penal Code Cap 17.

Particulars of Offence

LEPANI VARANI on the 13th day of April 2002 at Nausori in the Central Division stole $5.00 cash from the person of SHREEN LATA d/o Hari Narayan the property of the said SHREEN LATA d/o Hari Narayan.

Case No: 399/02

FIRST COUNT

Statement of Offence

WORKSHOP BREAKING ENTERING AND LARCENY: Contrary to section 300(a) of Penal Code, Cap. 17.

Particulars of Offence

LEPANI VARANI, between the 24th day of May, 2002 and the 25th day of May, 2002 at Nasinu in the Central Division, broke into the workshop of AMAR SINGH s/o Teja Singh and stole from therein 6 disco lights, 6 television screens, 3 video decks, 1 boombox with speaker, 4 car amplifiers, 2 tyres with rim, assorted electrical items and tools, 1 multi-meter and 1 toilet pan all to the total value of $7980.00, the property of the said AMAR SINGH s/o Teja Singh.

SECOND COUNT

Statement of Offence

LARCENY: Contrary to Section 262 and 259 of Penal Code, Cap. 17.

Particulars of Offence

LEPANI VARANI, between the 24th day of May, 2002 and the 25th day of May, 2002 at Nasinu in the Central Division, stole 1 boombox valued $1,000.00, 1 tyre valued $70.00 and 1 compact disc valued $30.00, all to the total value of $1,100.00 the property of MOHAMMED IQBAL s/o Mohammed Safi.

The Appellant pleaded guilty on all counts on 26th July 2002, and admitted the facts outlined by the prosecution. He also admitted a total of 27 previous convictions, which included convictions for robbery with violence, burglary and larceny. The learned Magistrate sentenced him to 18 months imprisonment on Count 1, 12 months imprisonment on Count 2, and 2 months imprisonment on File No. 243/02 all to be served concurrently to each other.

The Appellant was told he had 28 days to appeal. However, no application was received by the Nausori Magistrates’ Court until 29th October 2002. On 10th December 2002, the learned Magistrate refused the application saying:

“Sentencing was done on 26/7/2002 and accused told to appeal within 28 days. It is now more than 3 months when the application is received. Court should not entertain such long delay. Application for leave out of time rejected.”

This is the decision which the Appellant appeals against. Section 310 of the Criminal Procedure Code provides that the court may, at any time, for “good cause”, enlarge the appeal period. “Good cause” includes lack of representation, any case where a question of law of unusual difficulty is involved, inability to obtain the record, and delay caused in obtaining the DPP’s sanction to appeal against acquittal. There may be other circumstances which might constitute “good cause”. An obviously meritorious appeal is one such circumstance.

The Appellant’s application for enlargement of time in the Magistrates’ Court was made on the basis that he is not an educated man, and does not know how to compile an appeal petition. He said that his appeal was meritorious, in that the learned Magistrate failed to adequately consider his plea of guilty, the fact that he pleaded guilty and co-operated with the police, and his personal and family difficulties.

State counsel submitted that the learned Magistrate did not err in refusing to enlarge time for appeal. He said that the Appellant, with his long list of previous convictions, was no stranger to the court processes, and in any event had been told he had 28 days to appeal. Further, he said that the total sentence of 18 months imprisonment was not harsh or excessive, and that the appeal was doomed to fail.

The maximum sentence for workshop breaking and entry is 14 years imprisonment. The maximum sentence for a second conviction for larceny is 10 years imprisonment. Sentences for housebreaking offences appear to range from 2 to 3 years imprisonment (Dravere Ledua –v- State Crim. App. HAA0014 of 2002). In Poniasi Saulekaleka Crim. App. No. HAA0050 of 2001S, I found that “pick pocketing” larceny from person sentences to range from 12 months to 18 months imprisonment.

The sentence imposed on Count 1 of Case No. 399/02 is in fact below that range of sentences. Further the learned Magistrate’s notes show that he took into account the Appellant’s mitigation before he passed sentence. The appeal itself therefore lacks merit and is unlikely to succeed. Indeed, on the information before me, the Appellant was fortunate to receive concurrent sentences.

In all the circumstances, I do not consider that the learned Magistrate erred in refusing leave to appeal out of time. This appeal fails and is dismissed.

Nazhat Shameem
JUDGE

At Suva
25th March 2003