Court of Appeal of Fiji

[28] In the case of State of Himachal Pradesh vs. Sanjay Kumar alias Sunny (2017) 2 SCC 51 the Supreme Court of India one again stated

30. By no means, it is suggested that whenever such charge of rape is made, where the victim is a child, it has to be treated as a gospel truth and the accused person has to be convicted........ In such a situation one has to take stock of the realities of life as well. Vs studies show that in morn more than 80% cases of such abuses, perpetrators have acquaintance with the victims who are not strangers. The danger is more within than outside. Most of the time, acquaintance rapes, when the culprit is a family member, are not even reported for various reasons, not difficult to fathom. The strongest among those is the fear of attracting social stigma. Another deterring factor which many times prevent such victims or their families to lodge a complaint is that they find whole process of criminal justice system extremely intimidating coupled with absence of victim protection mechanism......... Equally, there is also a dire need to have a survivor centric approach towards victims of sexual violence, particularly, the children, keeping in view the traumatic long lasting effects on such victims.’

[29] In Tulshidas Kanolkar vs The State of Goa Appeal (crl.) 298 of 2003 (27/10/2003) the Supreme Court of India said on delay in reporting as follows.

‘In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case.’

[30] The Indian Supreme Court in The State Of Punjab vs Gurmit Singh & Ors 1996 AIR 1393, 1996 SCC (2) 384 (16 January, 1996) also held

In the normal course of human conduct, this unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to her teachers and others over-powered by a feeling of shame and her natural inclination would be to avoid talking about it to any one, lest the family name and honour is brought into controversy. Therefore her informing to her mother only on return to the parental house and no one else at the examination center prior thereto is an accord with the natural human conduct of a female. The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook.

The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case..... The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.

[31] The above decisions contain useful observations in considering any issue of delay in reporting of sexual abuses and how to evaluate a victim’s evidence in general.

[32] As far as the appellant’s case is concerned there is nothing to indicate in the summing-up that he represented by counsel had challenged the victim’s credibility on the basis of delayed reporting of the incidents relating to first to third counts. If the appellant had wished to discredit the victim on the basis of fabrication of allegations as a subsequent reflection as evidenced from the late complaint the victim must have been be confronted with that line of defense in cross-examination. Only then could the victim have explained reasons for not making a prompt complaint regarding the incidents in 2006, 2007 and 2008. Otherwise, the appellant’s argument based on ‘delay’ in reporting remains only an afterthought taken up simply as an appeal point.

[33] Moreover, the appellant does not appear to have come out with any sinister motive as to why his granddaughter had made a series of allegations spanning over 03 years involving not just penile rape but anal rape as well.

[34] Apart from her total dependence on the appellant in the absence of her father and mother being unable to look after her, her immediate reactions to the appellant’s sexual invasions are highlighted in paragraphs 33 and 34 of the summing-up which demonstrate her helplessness.

33. She said, she saw her grandfather closed the door of their house and locked it. He then drew the curtains and took her to their bedroom. She said, he placed her on the bed and took her clothes off. She said, she was scared and tried to scream. She said, her grandfather smacked her on the mouth, and threatened her not to raise the alarm. She said, he then tied a piece of cloth around her mouth to stop her from raising the alarm. She said, he then took off his clothes. She said, he laid on top of her and inserted his penis into her vagina and had sex with her for a while. She said, she was scared and didn’t know what to do. She said, he later ejaculated. She said, she was lost and did not know what to do. She said, he repeated the above to her in July, August, September, October and November 2006.
    
34. On Count No. 2, she said, her grandfather repeated the above episode to her on 22 March 2007. She said, his modus operandi was similar to the above. On Count No. 3, she said, her grandfather told her to bend down in his bedroom near his bed sometime in 2008. She said, he then inserted his penis into her anus. This was also after school between 3 pm and 3.30 pm. She said, it was painful to her. She said, she couldn’t do anything as he was physically stronger than her.
    
35. On Count No. 4, she said, her grandfather also inserted his penis into her vagina sometimes in September 2009. She said, his modus operandi were similar to those in Count No. 1 and 2. She said, he did the above to her while her grandmother was at the market, and when she came back from school. She said, she could not recall the exact date of the incidents in Count No. 3 and 4. On Count No. 5, she said, her grandfather punched her on 17 September 2009. She said, when her grandmother returned from the market, she told her everything. The matter later came to the police’s attention, and thus the present criminal proceeding. If you accept the complainant’s evidence, then you must find the accused’s guilty as charged on all counts. It is a matter entirely for you.

[35] It is clear that the assault by the appellant on the victim had been the proverbial last straw that broke the camel’s back. In addition when the last two incidents happened in 2009 the victim had grown to be 13 years of age from being the minor of 10 years old when the appellant started sexually abusing her in 2006.

[36] In the totality of circumstances including her tender age, her total dependence on the appellant being the sole caregiver and his complete domination and his relationship to her being her grandfather would themselves explain why she had delayed reporting his sexual abuses and therefore, the substratum of the evidence given by the complainant has not been affected by the delay in reporting.

[37] There is no real prospect of success in this ground of appeal.

02^nd ground of appeal (sentence)

[38] The appellant complains that the sentence is harsh and excessive.

[39] It is true that serious breach trust, rape of children and lack of remorse could not have been considered in this instance separately as aggravating factors to enhance the sentence by 03 years. Similarly, the appellant should not have been considered a first offender to be given a discount of 02 years, for an accused who has committed several offences on the victim over a period of time cannot and should be treated similar to an accused who has committed the offence or offences in the same transaction for the first time.

[40] Serious breach trust and rape of children should not have been considered in this instance to enhance the sentence as the trial judge has picked the starting point at 14 years obviously considering the objective seriousness of the offences which included serious breach trust and rape of children. It amounts to a form of double counting. The Supreme Court in Kumar v State [2018] FJSC 30; CAV0017.2018 (2 November 2018) identified this instance of double counting by stating that many things which make a crime so serious have already been built into the tariff and that puts a particularly important burden on judges not to treat as aggravating factors those features of the case which already have been reflected in the tariff itself.

[41] The appellant’s lack of remorse certainly deprived the appellant of any discount for ‘genuine remorse’ but it could not have been treated as an aggravating factor to enhance the sentence (vide paragraph [54] in Alfaaz v State [2018] FJCA 19; AAU0030.2014 (8 March 2018).

[42] On the other hand the appellant had got an undeserving discount of 02 years for being a ‘first offender’. Thus, there are a few sentencing errors committed in the process.

[43] However, sentencing is not hematical exercixercise. It is an exercise of judgment involving the difficult and inexact task of weighing both aggravating andgating circumstances concerning the offending, and arriving at a sentence that fits the crie crime. Recognising the so-called starting point is itself no more than an inexact guide. Inevitably different judges and magistrates will assess the circumstances somewhat differently in arriving at a sentence. It is the ultimantence that that is of importance, rather than each step in the reasoning process leading to it. When a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step e reasoning process that muat must be considered [vide Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006) and Maya v State [2017] FJCA 110; AAU0085.2013 (14 September 2017)]. In determining whether the sentenciscretion has miscarried thed the appellate courts do not rely upon the same methodology used by the sentencing judge. The approach taken by them is to assess whether in all the circumstances of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies within the permissible range (Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015).

[44] The State Of Punjab vs Gurmit Singh & Ors (supra) held

‘Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female.’