Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Bulitawatini v State [2008] FJHC 246; HAA094.2008 (6 October 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA 094 OF 2008

BETWEEN:

LORIMA BULITAWATINI
Applicant

AND:

THE STATE
Respondent

Counsel: Applicant in Person
Ms. H. Tabete for the State

Date of Hearing: Friday 3rd October, 2008
Date of Ruling: Monday 6th October, 2008

RULING

[1] This is an application to appeal against sentence out of time.

[2] On 23 March 2007, the applicant was convicted on his own plea of guilty on one count of assault with intent to rob and sentenced to 2 ½ years imprisonment.

[3] He appealed against conviction only and on 3 October 2007 Winter J dismissed his appeal (Bulitawatini v The State, Criminal Appeal No. HAA 101 of 2007).

[4] On 27 September 2008, the applicant filed this application to appeal against sentence.

[5] On 3 October 2008, the application was heard and the applicant was asked to show cause for the delay in filing his appeal against sentence.

[6] The applicant informed the Court that he was not aware that he could appeal both conviction and sentence together.

[7] The Court referred the applicant to the judgment of Winter J in which his Lordship expressly ascertained from the applicant whether he only wished to appeal conviction, to which the applicant replied in affirmative. The applicant then requested this Court to give him a second chance to appeal.

[8] The principles to be applied to an application to appeal out of time are the strength of the proposed appeal, the length of the delay and the reasons for the delay, the floodgates considerations, and the absence of prejudice to the opposing party (The State v Patel, Criminal Appeal No. AAU0002 of 2002S).

[9] I deal with the strength of the appeal first.

[10] The offence committed by the applicant was serious. The victim was struck on the head with a stick when he returned home on the evening of 9 February 2007 from work. The incident happened inside the compound of the victim’s house where the applicant was hiding. The victim by profession was a bus driver. He had the money box with him on the night he was attacked. On the first strike, the victim fell down. When the victim called for assistance, the applicant struck him again. The victim’s family came out of the house and the applicant fled the scene. The victim received a deep cut on his head (6cm x 1cm x 1cm) and his right hand was sprained and swollen.

[11] The applicant had previous convictions for robbery with violence. The learned Magistrate took into account the early guilty plea and personal circumstances as the mitigating factors. The serious injuries sustained by the victim and that the offence was committed in the compound of the victim’s house at a night time were taken as the aggravating features before arriving at a term of 2 ½ years imprisonment.

[12] The appropriateness of the term of 2 ½ years imprisonment imposed on the applicant has to be considered in the light of the observations about the tariff for this kind of offence that the Court of Appeal made in Bose v The State, Criminal Appeal No. AAUU24 of 2005. Applying proper principles, the term of 2 ½ years imprisonment even on a plea of guilty is to be classed lenient.

[13] The injuries sustained by the victim were indeed serious. The offence must have had some effect on his profession and source of livelihood given that he was a bus driver.

[14] I am not satisfied that the applicant has shown good cause for the late appeal. I also find that there is no chance of success in the appeal. The appeal is bound to fail.

[15] The application is refused.

Daniel Goundar
JUDGE

At Suva
Monday 6th October, 2008

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