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Senilolokula v State [2014] FJCA 210; AAU0095.2013 (5 December 2014)

IN THE COURT OF APPEAL
[On appeal from the High Court]

CRIMINAL APPEAL NO. AAU0095 OF 2013
[High Court Case No. HAC443/12S]

BETWEEN:

IOWANE ISIKELI SENILOLOKULA
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA

Counsel : Mr. J. Savou for the Appellant
Ms P. Madanavosa for the Respondent

Date of Hearing : 20 November 2014
Date of Ruling : 5 December 2014

RULING

[1] The appellant was charged with a representative count of rape contrary to section 207(1)(2)(b) and (3) of the Crimes Decree. It was alleged that between 1 April 2011 and 30 June 2011, the appellant had a carnal knowledge of the complainant without her consent. The complainant was a student at the Gospel School for the Deaf. She had hearing and speech impediment and was 16 years old at the time of the offence. She resided at the hostel run by the School. The appellant and his wife were the wardens of the hostel. Apart from being the warden, the appellant was also a bible teacher at the School.

[2] The appellant pleaded not guilty to the charge. On 26 July 2013, he was convicted of the charge after a trial. At trial, the appellant was represented by two senior counsel, Mr. Nawaikula and Mr. Vere. On 31 July 2013, the appellant was sentenced to 16 years' imprisonment with a non-parole period of 14 years by the High Court.

[3] On 7 October 2013, he filed a Notice of Appeal against conviction and sentence. That Notice is dated 23 August 2013, but the Department of Corrections did not forward the Notice to the Court of Appeal Registry until 7 October 2013, by which time the appeal was out of time by about one month.

[4] On 20 November 2014, the appellant filed an amended Notice of Appeal through his legal aid counsel. The amended Notice contains only one ground of appeal and that ground relates to the appellant's conviction.

[5] The ground of appeal states:

"The Learned Trial Judge erred in law and in fact when he allowed in evidence the history given to the doctor by the complainant considering it was hearsay evidence thereby causing a miscarriage of justice."

[6] Fortunately, the judge's notes have been typed and were made available to me for the purpose of leave hearing.

[7] It is clear that the appellant's proposed ground of appeal is not arguable for three main reasons. Firstly, the appellant's trial counsel did not take any objection to the admissibility of the medical history evidence at trial. Secondly, the court record shows that both the complainant and the doctor who examined her gave evidence at trial. Thus, the medical history that the complainant related to the doctor was not hearsay evidence. Both the doctor and the complainant could have been cross-examined on the history that the complainant gave to the doctor. Thirdly, the appellant was not convicted on the medical history evidence, but on the complainant's evidence led at trial. The conviction appeal on this ground is therefore not arguable.

[8] Although the appellant has not advanced any grounds against sentence, perusal of the trial judge's sentencing remarks show some arguable grounds. Unfortunately, counsel for the appellant has not seen fit to appeal against sentence. The arguable grounds relate to the factors that the trial judge identified to increase the appellant's sentence. The aggravating factors identified by the trial judge in summary are:

(i) Para 11 of sentencing remarks – the appellant's position of authority – add 3 years to sentence.

(ii) Para 12 of sentencing remarks – the breach of trust – add 3 years to sentence.

(iii) Para 13 of sentencing remarks – opportunistic crime – add 2 years to sentence.

(iv) Para 14 of sentencing remarks – pre-planning involved and several sexual acts involved – add 1 year to sentence.

(v) Para 15 of sentencing remarks – lack of remorse – add 1 year to sentence.

[9] The appellant's position of authority and the breach of trust arose from a common fact, namely, that the appellant was the complainant's teacher and guardian at the school and the hostel. Arguably, the appellant was punished twice based on the same fact. The trial judge further contradicts himself by saying this was both an opportunistic and pre-planned crime. Furthermore, although the appellant was charged with a representative count, he was convicted of one sexual act and not several as considered by the trial judge. Arguably, the appellant was sentenced for un-convicted crimes. The lack of remorse arose because the appellant elected to exercise his right to a trial. Arguably, he cannot be punished for exercising his right.

[10] For these reasons, the appeal against sentence is arguable.

Result
[11] Extension of time is granted.

[12] Leave to appeal against conviction is refused.

[13] Leave to appeal against sentence is allowed.

Hon. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Office of the Director of Legal Aid Commission for Appellant
Office of the Director of Public Prosecutions for State