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Baleinukulala v State [2008] FJHC 99; HAA136J.2007 (9 May 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 136 of 2007

BETWEEN

ERONI BALEINUKULALA
Appellant

AND:

THE STATE
Respondent

Hearing: 2nd May 2008
Judgment: 9th May 2008

Counsel: Appellant in person
Mr. A. Rayawa for State

JUDGMENT

This was originally an appeal by the respondent, Eroni Baleinukulala against his sentence of a total of seven years imprisonment for multiple offences including robbery with violence. He then discontinued his appeal saying that he had mistakenly believed that his sentences were to be served consecutively. However on the date he withdrew his appeal, the State said that it wished to cross-appeal, asking for the sentences to be served consecutively.

A cross-appeal by the Director of Public Prosecutions was filed on the 13th of March 2008. The grounds are:

"(a) The learned Magistrate erred in law when he ordered that the seven years of imprisonment imposed on the 26th day of June 2007 be served [con]currently with a prior term of seven years imposed on the 2nd day of March 2006.

(b) The learned Magistrate erred in law and fact when he did not take into account the entire conduct of the Respondent when imposing the sentence.

(c) The learned Magistrate erred in law when he imposed a sentence that was manifestly lenient having regard to all the circumstances of the case."

I asked State counsel to address me firstly on the competence of the appeal, when the appeal by the Respondent had been discontinued. Did the State’s cross-appeal depend on the existence of the Respondent’s appeal? State counsel said there were no authorities on point, but submitted that even if the State’s cross-appeal was incompetent, the matter was now before the court and the court had a revisional jurisdiction to correct any matters of law.

Section 308 of the Criminal Procedure Code gives to any person who is dissatisfied with any judgment, sentence or order of a magistrates’ court in any criminal cause or matter to which he is a party, a right of appeal. Section 310 provides that any petition of appeal must be presented in the magistrates’ court within 28 days of the order appealed against. There is no other time limit specified for the filing of appeals. Nor is there any provision for cross-appeals.

There is however a section for the discontinuance of appeals. It is section 318(1) which provides:

"An appellant may be giving notice in writing to the Chief Registrar discontinue his appeal at any time before the date of hearing and, upon such discontinuance and without prejudice to the power of the High Court to make an order for costs, no further steps shall be taken in the appeal, and the magistrates’ court may proceed to enforce the decision appeal from."

I do not read this section as prohibiting the hearing of a cross-appeal. This is because the Criminal Procedure Code makes no provision for a cross-appeal, and any such appeal must therefore be treated as a substantive appeal. Therefore, its competence rests not on the existence of the original appeal, but upon whether the criteria set out in sections 310 and 311 have been satisfied. If they have been so satisfied, the appellate court can proceed to hear the appeal even if the original appeal has been discontinued.

In this case the cross appeal was filed without an application for enlargement of time. It is filed 9 months after sentence was passed and there are no grounds to justify the grant of leave to appeal out of time. In relation to the merits of the appeal, State counsel submits that the sentence of 7 years imprisonment is manifestly lenient. If it is served consecutive to the 7 year term imposed on the Respondent on the 2nd of March 2006, he will serve, in effect 14 years imprisonment.

I accept that a total sentence of 7 years imprisonment for over 12 offences of robbery with violence, burglary, resisting arrest, shop-breaking and assault with intent to rob is lenient. This is particularly because one of the robbery cases was a home invasion which normally leads to sentences in excess of 10 years imprisonment.

In State v. Semisi Wainiqolo HAC 015/2004S, Gates J imposed a sentence of 14 years imprisonment on one count of robbery with violence. In Sakiusa Basa v. State AAU0024/2005, the Fiji Court of Appeal said that sentences for cases of robbery should be higher in Fiji, than it is in New Zealand, because the maximum statutory term is life imprisonment.

I accept therefore that the Appellant who is now serving a term of 7 years and 4 months imprisonment for multiple offences was treated leniently by the Magistrates’ Court. However, I do not consider the total term imposed, to be manifestly lenient. Although he has previous convictions of similar offences, and the value of the property stolen is high, the learned Magistrate put much weight on the time saved by the pleas of guilty on no less than 12 files. Although he gave the Respondent only 2 years credit for the guilty pleas, he was in fact entitled to more credit because of the number of the offences charged. Furthermore on the robbery counts, the complainants were not seriously injured.

In these circumstances even with a starting point of 10 years imprisonment, a reduction by 3 years would be reasonable. The order for the sentences to be served concurrently, I believe was given because of the guilty pleas.

For these reasons, I decline to grant the State leave to appeal out of time.

Nazhat Shameem
JUDGE

At Suva
9th May 2008