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Vaqewa v State [2013] FJHC 594; Criminal Case 358.2013 (8 November 2013)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: 358 OF 2013

BETWEEN:

ERONI VAQEWA
Applicant

AND:

STATE
Respondent

Counsel: Applicant in Person
Ms Shelyn Kiran for Respondent

Date of Hearing: 30 October 2013
Date of Ruling: 8 November 2013

RULING

1. This is an application for leave to appeal out of time.
   
2. The applicant was charged before the Magistrate Court of Lautoka with one count of Robbery with Violence.
   
3. He was convicted after trial and was sentenced for 5 years and 6 months on 4.6.2010 with a non parole period of 40 months.
   
4. This appeal was filed on 12.8.2013, after 3 years and two months.
   
5. The reasons given for the delay are that:
   
   • (i) No one assisted him in making an appeal,
   • (ii) He is new to the criminal Justice system.
     
6. The Section 248 of the Criminal Procedure Decree provides:
   
   • (1) Every appeal shall be in the form of a petition in writing signed by the appellant or the appellant's lawyer, and within 28 days of the date of the decision appealed against-
     
     • (a) it shall be presented to the Magistrates Court from the decision of which the appeal is lodged;
       
     • (b) a copy of the petition shall be filed at the registry of the High Court; and
       
     • (c) a copy shall be served on the Director of Public Prosecutions or on the Commissioner of the Fiji Independent Commission Against Corruption.
       
   • (2) The Magistrates Court or the High Court may, at any time, for good cause, enlarge the period of limitation prescribed by this section.
     
   • (3) For the purposes of this section and without prejudice to its generality, "good cause" shall be deemed to include-
     
     • (a) a case where the appellant's lawyer was not present at the hearing before the Magistrates Court, and for that reason requires further time for the preparation of the petition;
       
     • (b) any case in which a question of law of unusual difficulty is involved;
       
     • (c) a case in which the sanction of the Director of Public Prosecutions or of the Commissioner or the Fiji Independent Commission Against Corruption is required by any law;
       
     • (d) the inability of the appellant or the appellant's lawyer to obtain a copy of the

judgment or order appealed against and a copy of the record, within a reasonable

time of applying to the court for these documents.

7. The principles for an extension of time to appeal are settled. The Supreme Court in Kumar v State; Sinu v State [2012] FJSC 17; 2 CAV0001.2009 (21 August 2012) summarized the principles at paragraph [4]:
   

"Appellate courts examine five factors by way of a principled approach to such applications. These factors are:

(i) The reason for the failure to file within time.

(ii) The length of the delay.

(iii) Whether there is a ground of merit justifying the appellate courts 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?"

8. More recently, in Rasaku v State [2013] FJSC 4; CAV0009, 0013.2009 (24 April 2013), the Supreme Court confirmed the above principles and said at paragraph [21]:
   

" These factors may not be necessarily exhaustive, but they are certainly convenient

yardsticks to assess the merit of an application for enlargement of time. Ultimately, it is

for the court to uphold its own rules, while always endeavoring to avoid or redress any

grave injustice that might result from the strict application of the rules of court. "

9. The applicant has 13 previous convictions and therefore cannot be considered as a novice in the Criminal Justice system. The fact that he had not been assisted by no one in making an appeal cannot be considered as a justifiable ground to extend the appealable period by 3 years and 2 months. There is no merit in these grounds for delay.
   
10. However considering the fact that the applicant was not represented at the Magistrate court, this court considered the grounds of appeal on conviction and sentence in order to ascertain any substantial prejudice had been caused to the applicant or there are grounds of merit justifying this court's consideration.
    
11. The grounds of appeal against the conviction are:
    
    • (i) Improper identification by Yogeshwar Prakash as an ID parade was not conducted and dock identification was not sufficient neither was he identified by the complainant, Natasha Khan,
      
    • (ii) Maraia had falsely implicated him to get away from her liability.
      
12. The grounds of appeal against the sentence are:
    
    • (i) It is wrong to order a short sentence to run consecutively which is against the sentencing and penalties decree and the totality principle,
      
    • (ii) Sentence is harsh and excessive.
      
13. First ground of appeal against the conviction
    

The principle ground of appeal relates to the issue of identification of the applicant. The position of the applicant is that the police should have held an identification parade.

The identification of the accused is by a taxi driver (Yogeshwar Prakash) who was also robbed by the applicant moments before this incident. He had gone to the police station to inquire about the progress about his complaint. He had seen the accused in the police station and had immediately informed Cpl. Sharoon about this. The applicant was arrested for both cases.

Therefore this identification could be considered as recognition. This was 17.12.2009 about 20 days after the incident. Cpl. Sharoon had corroborated above version.

14. In Wainiqolo v State [2006] FJCA 70; AAU 0027.2006 (24 November 2006) Court of Appeal observed that:
    

"The circumstances in the present case were different from a case where the first identification after the offence takes place in court. This was a case of recognition rather than identification of a stranger and different considerations arise."

"An identification parade would have added nothing because it would not have tested the accuracy of her previous identification of the robber. She believed she had seen a person, a relative, she already knew. The accused is the person she thought she saw. If he had been placed on a parade, she would have been identifying him as that relative, not checking the accuracy of her original recognition of him. More than that, it would appear likely that an identification parade could be prejudicial in such a case because it could be seen as strengthening the initial identification when it is, in fact, no more than an identification of a person on the parade that she already knew and would be looking for"

"Equally the identification in the dock was no more than identifying the accused as the person she knows as relative. It added nothing to the original recognition which, as we have said, was the identification the assessors needed to consider against the Turnbull warning."

15. There was also identification by DC Suresh Kumar, who saw the applicant with another jumping over a fence, minutes after the robbery with a brown bag in hand.
    
16. Considering all above there was sufficient evidence before the Magistrate on identification of the applicant and there is no merit in this ground of appeal.
    
17. The second ground of appeal against the conviction is Maraia had falsely implicated him to get away from her liability.
    
18. Maraia in her evidence had said that the applicant gave her the hand bag on 27.11.2008. She had identified this bag in the court. The complaint too had identified the same bag in the court. Although the applicant was explained this evidence and given opportunity to cross examine he had not asked any question from this witness. Therefore there is no merit in this ground of appeal.
    
19. The first ground of appeal against the sentence is, it is wrong to order a short sentence to run consecutively which is against the sentencing and penalties decree and the totality principle.
    
20. The Magistrate had erred in law as he had failed to consider the section 22 (1) of the Sentencing and Penalties Decree 2009. The section is as follows.
    

'Subject to sub-section(2), every term of imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of imprisonment.'

21. Further in Section 22 (2) it is stated that subsection (1) does not apply to a term of imprisonment imposed –
    

(c) On a habitual offender under Part III

22. In part III of the Decree Habitual offenders are defined. According to section 10, this Part applies to a court when sentencing a person determined under section 11 to be a habitual offender for ... (c) offences involving robbery or house breaking.
    
23. Section 11 says that "A judge may determine that an offender is a habitual offender for the purposes of this Part-
    
    • (a) When sentencing the offender for an offence or offences of the nature described in Section 10;
      
    • (b) Having regard to the offender's previous convictions for offences of a like nature committed inside or outside Fiji; and
      
    • (c) If the court is satisfied that the offender constitutes a threat to the community.
      

11(2) The powers under this part may be exercised by the Court of Appeal and the Supreme Court when hearing an appeal against the sentence.

24. The appellant is having 13 previous convictions. All of these could be considered as offences involving robbery or house breaking.
    
25. Therefore the Magistrate is justified is ordering the sentence to run consecutively although he had failed to mention above provisions. There is no merit in this ground as well.
    
26. The next ground of appeal against the sentence is that it is harsh and excessive.
    
27. The tariff for robbery with violence is 7 to 10 years as observed by Madigan J in Baleinakeba v State [2010] FJHC 207;HAA008.2010. The Hon. Judge had observed that:
    

"A tariff of 4-8 years may have at one time been appropriate tariff, but it is certainly no longer. In adopting the dicta of the Fiji Court of Appeal in Basa's case CA AAU 24 of 2005 the Fiji Courts are now following the English line of cases for robbery with violence and not more lenient New Zealand authorities. In the High Court, the tariff is more within the range of 10 to 15 yearsConsideringf, and given the jurisdictional restraints of the Magistrates Court, I would venture that the proper tariff there now should be 7 to 10 years."

28. The Magistrate had picked a starting point of 5 years he had increased the same by 12 months for the aggravating factors and deducted 6 months for the mitigating factors. Therefore, there is no merit in the ground that the sentence is harsh and excessive.
    
29. Considering all above, leave to appeal out of time against the conviction and sentence is refused.
    

Sudharshana De Silva
JUDGE

At Lautoka
8th November 2013

Solicitors: Applicant in person
Office of the Director of Public Prosecutions for Respondent