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Uluivuda v State [2008] FJHC 176; HAR002J.2008S (15 August 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
REVISIONAL JURISDICTION

Criminal Revisional Case No: HAR 002 of 2008

Between:

KINIJOJI ULUIVUDA
Applicant

And:

THE STATE
Respondent

Hearing: 8th August 2008
Judgment: 15th August 2008

Counsel: Applicant in person
Ms N. Tikoisuva for State

RULING

On the 16th of February 2007 I delivered a judgment allowing an appeal against sentences delivered totaling 14 years imprisonment in relation to this Applicant. I found that the total length was excessive and reduced it by ordering that the 7 year term imposed in Case 1604 of 2004 be served concurrent to the 3 year term the Applicant was then serving and concurrent to the 4 year term imposed in Case No. 2740. I then held at page 7 of my judgment:

"His total term is therefore 7 years imprisonment to run from the 10th of February 2006."

That was the date of sentence in the Magistrates’ Court and was the date on which consecutive sentences were ordered, totaling 11 years.

The Officer in Charge of the Minimum Security Prison at Naboro wrote to the Chief Registrar of the High Court seeking variation of my judgment. I consider it to be a request for revision. The letter sets out the reasons as follows:

"This person is making a request seeking consideration that the period of 11 months and 19 days he had been serving before criminal appeal HAA 113/06 was passed, be included in such judgments.

This can only be done if judgment on criminal appeal HAA 113/06 be backdated to 22.02.05 and not 10th February, 2006.

Outline hereunder is details which may assist in the consideration of his plea:

1. He was first admitted to prison for 3 years on 22/02/2005. While serving this case he received additional warrants totaling his sentence to 14 years.
   
2. Judgment of his appeal reduced the sentence to 7 years effective from 10th Feb, 2006.
   

The above judgment failed to consider the period he was serving from his first admission on 22/02/2005 to 10/02/2006 which is 11 months and 9 days.

Therefore this person is seeking your consideration to backdate the judgment passed on criminal appeal HAA 113/06 to 22/02/2005."

What the Applicant requests is the backdating of the 7 year term to 22nd February 2005. However, he was sentenced in Case No. 1604 on the 10th of February 2006, the day he pleaded guilty before the learned Chief Magistrate. The term, on appeal is to be served concurrently with his other terms of imprisonment. Concurrent does not mean that it starts to run from the date of imposition of the other terms. It means that instead of running from the day his existing terms are served, the concurrent term starts to run from the day the sentence is imposed.

Even if I had powers to change my judgment more than a year after I delivered it, I would not agree to change it.

I imposed a concurrent term of 7 years to run from the day of sentencing, on the 10th of February 2006. I had no powers to backdate the sentence to any earlier date. As such, the dates specified in my judgment of 16th February 2007 stand.

This ruling serves to clarify the matter.

Nazhat Shameem
JUDGE

At Suva
15th August 2008