Prolific thief, Penisimani Tupa's application for leave to appeal against his six-years nine-months sentence was denied by the Lord Chief Justice.

His application was for leave to appeal out of time against his sentence to the Court of Appeal.

Lord Chief Justice Whitten QC in a ruling on July 13 denied the application, after finding that it has not demonstrated an arguable case in respect of any of the complaints in his application and affidavit.

"In all the circumstances, particularly, the applicant's appalling criminal history, there is no clear indication that, in relation to the subject sentences, something has gone wrong."

Offending

Tupa has an extensive criminal history, which included a criminal case where he pleaded guilty to three counts of serious housebreaking and three counts of theft.

This offending was on October 13, 2015 with the stolen goods comprising of Tongan mats valued $8,400, $2,200 and $1,800 respectively.

The Lord Chief Justice said, according to the summary of facts, he pawned the goods stolen from the residences of the second and third complainants to buy methamphetamines.

In another criminal case, he pleaded guilty to possession of 0.156 grams of methamphetamine, while in police custody. This occurred on December 28, 2017.

Former Justice Cato in sentencing him in 2017 placed emphasis on hia extensive criminal history.

It began with a conviction in 2008 for unlawful entry and, in the same year, seven counts of housebreaking and theft for which the applicant was given a community-based sentence.

Later, in 2016, he was sentenced to one-year imprisonment for escaping from lawful custody. His Honour described the applicant as a recidivist house breaker who had been treated leniently in the past, he said.

Tupa received an overall sentence of six-years and nine-months imprisonment.

The judge then also recorded the Prosecution's advice that the applicant was not entitled to have the sentences backdated because his remand in custody for the instant offending coincided with the terms of imprisonment, he was serving for other offendings. He also opined that the applicant had learned nothing and therefore could not expect further leniency by any further suspensions of sentence, he said.

Appeal

On July 2 this year, Tupa through his counsel, Sunia Fili filed an ex parte application for leave to appeal against his sentences out of time.

Lord Chief Justice Whitten said, the reason for the delay in this case was because the applicant could not afford a lawyer to appear for him upon his sentencing.

"That, of itself is not a valid basis for an extension of time within which to appeal. The real issue is whether by reason of a lack of legal representation, or in any event, the sentencing judge's discretion miscarried in some way whether as a matter of principle or approach, such as failing to take into account relevant considerations or taking into account irrelevant considerations, which has resulted in a sentence which is manifestly excessive."

He said it appeared to have been overlooked by the applicant that in light of his criminal history, the starting point set by the sentencing judge for the further housebreaking of six years imprisonment could well be regarded as generous.

The applicant's complaint included his claim that the judge failed to consider the totality principle. However, the Lord Chief Justice found no error of principle.

"Here, the applicant has not demonstrated an arguable case in respect of any of the complaints in his application and/or affidavit. In all the circumstances, particularly, the applicant's appalling criminal history, there is no clear indication that, in relation to the subject sentences, something has gone wrong."

He refused the application.

The Director of Public Prosecution, James Lutui acted for the Crown.