|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CRIMINAL APPEAL NO. AAU 146 of 2019
[In the High Court at Lautoka Case No. HAC 152 of 2016]
BETWEEN:
SEMI MALAI
Appellant
AND:
STATE
Respondent
Coram: Prematilaka, ARJA
Counsel: Mr. M. Fesaitu for the Appellant
: Mr. R. Kumar for the Respondent
Date of Hearing: 01 December 2021
Date of Ruling: 02 December 2021
RULING
[1] The appellant had been indicted in the High Court at Lautoka on one count of rape contrary to section 207(1) and (2) (c) and (3) of the Crimes Act, 2009 and two counts of indecent assault contrary to section 212 (1) of the Crimes Act, 2009 committed at Sigatoka in the Western Division on 23 July 2016 against a 07 year old female child.
[2] The information read as follows:
‘COUNT ONE
Statement of Offence
RAPE: Contrary to section 207 (1) and (2) (c) and (3) of the Crimes Act No. 44 of 2009.
Particulars of Offence
SEMI MALAI&, on>, on the 2the 23rd day of July, 2016, at Sigatoka, in the Western Division, inserted his penis into tuth o0;“VH”.
COUNT TWO
Stnt of Offence
INDECENT ASSAULT: Contrary to section 212 (1) of the Crimes Act No. 44 of 2009.
Particulars of Offence
SEMI MALAI
COUNT THNT THREE
INDECENT ASSAULT: Contrary to s to section 212 (1) of the Crimes Act No. 44 of 2009.
Particulars of Offence
SEMI MALAI the 23rd day of July,, at Sigatoka, oka, in the Western Division, unlawfully and indecently assaulted&&#VH/b> bching her breasts.’<217;
[3] At the ende end of t of the suhe summing-up, the assessors had opined that thellant was guilty of all counts. The learned trial judge had agreed with the assessors̵’ opinion, convicted the appellant and sentenced him on 11 June 2019 to an aggregate sentence of 18 years, 04 months and 15 days of imprisonment (after the remand period was deducted) with a non- parole period of 16 years.
[4] The appellant’s appeal against conviction and sentence (03 October 2019) is out of time but within 03 months after the lapse of the appealable period. Therefore, the respondent waived the requirement for enlargement of time and accordingly, the Legal Aid Commission had tendered amended grounds of appeal against conviction and sentence and written submission on 04 March 2021. The state had tendered its written submissions on 30 November 2021.
[5] In terms of section 21(1)(b) and (c) of the Court of Appeal Act, the appellant could appeal against conviction and sentence only with leave of court. The test in a timely appeal for leave to appeal against sentence is ‘reasonable prospect of success’ [see Caucau v State [2018] FJCA 171; AAU0029 of 2016 (04 October 2018), Navuki v State [2018] FJCA 172; AAU0038 of 2016 (04 October 2018) and State v Vakarau [2018] FJCA 173; AAU0052 of 2017 (04 October 2018), Sadrugu v The State [2019] FJCA 87; AAU 0057 of 2015 (06 June 2019) and Waqasaqa v State [2019] FJCA 144; AAU83 of 2015 (12 July 2019) in order to distinguish arguable grounds [see Chand v State [2008] FJCA 53; AAU0035 of 2007 (19 September 2008), Chaudry v State [2014] FJCA 106; AAU10 of 2014 (15 July 2014) and Naisua v State [2013] FJSC 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds [see Nasila v State [2019] FJCA 84; AAU0004 of 2011 (06 June 2019)].
[6] Further guidelines to be followed for leave to appeal when a sentence is challenged in appeal are well settled (vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013] FJSC 14; House v The King<60; [1936] HCA 40; , Kim Nam Bae v The State
(i) Acted upon a wrong principle;
(ii) Allowed extraneous or irrelevant matters to guide or affect him;
(iii) Mistook the facts;
(iv) Failed to take into account some relevant consideration.
[7] The groundsounds of appeal urged on behalf of the appellant against conviction and sentence are as follows:
Conviction
Grounu>
THAT the Learned Trial Judge had erred in law and in facts having not directed the assessors to evaluate for themselves the discrepancy as to what was communicated between the complainant and her mother in regards to the evidence of recent complaint that may affect the credibility of the complainant.
Sentence
Ground 1
THAT the Learned Trial Judge erred in principle by double counting having considered aggravating factors that is reflected already in selecting a starting point.
[8] The trial judge in the judgment had summarized the prosecution evidence and defense position as follows:
01st ground of appeal
[9] The appellant submits that the learned trial judge at paragraphs 46-48 of the summing-up had directed the assessors how to approach the recent complaint evidence of PW2 (the mother of the victim) but failed to direct them to consider and evaluate for themselves the discrepancy as to what PW1 (the complainant) relayed to PW2. The discrepancy highlighted is that according to PW1’s evidence she only told PW2 that the appellant had touched her private part but not that he had got her to such his penis whereas PW2 said in evidence that her daughter told her that the appellant had got her to suck his penis and he also touched her private part.
[10] The directions at paragraphs 46-48 of the summing-up is in consonance with guidance provided in Raj v State
[11] However, any perceived inadequacy or omission in directions on this point should have been addressed by way of redirections as
held in Tuwai v State/b>  [2016] FJSC35 (26 Augus6) a16) and Alfaaz v State/b>> [2018] FJCA19; AAU0030 14 (014 (08 March 2018) and
[12] The trial judge had himself explained the discrepancy at paragraph 14 of the judgment as follows:
[13] In fact Raj also held that it is not necessary for the complainant to describe the full extent of the unlawful sexual conduct but only material and relevant unlawful sexual conduct on the part of the accused. What prompted the victim to readily come out with the act of touching her private part by the appellant can be understood by what she had told PW2 as revealed in the latter’s evidence to the effect that “Mum both you and dad always told me that if anyone touches my private part I should tell you”. That perhaps explains why the act of the appellant putting his penis into the victim’s mouth was not disclosed at that stage by the victim to her mother as the advice by her parents was to tell them if anyone were to touch her private part. Further, immediately after hearing the victim’s story the mother also had started crying which may have prevented the former disclosing other details.
[14] In Fiji, the assessors are not the sole judge of facts. The judge is the sole judge of fact in respect of guilt, and the assessors are there only to offer their opinions, based on their views of the facts and it is the judge who ultimately decides whether the accused is guilty or not [vide Rokonabete &# St;ve [2006] FJCA 85; AAU0048.2005S (22 March 2006), Noa Maya v.State< [2015] FJSC 30; CAV 009 of 2015 (23 October 2015], Rokopeta v State ef="h/www.i.org/forg/fj/casj/cases/FJSC/2016/33.html" title="Vie="View Case">[2016] FJSC 33; CAV0009, 0016, 0018, 0019.2016 (26 August) and Fraser v State [2021] FJCA 185; AAU128.2014 (5 May 2021)]. The judge wage was entitled to draw reasonable inferences from the factual scenario in the case and real-life human experience to explain the conduct of the victim.
[15] In addition, even if the recent evidence of the mother is excluded there is direct un-assailed evidence of the victim on all
counts. Her demeanour of crying alone soon after the incident may amount to distress evidence as well though not considered by the
prosecution and the trial judge (see for distress evidence Soqonaivi v State (Majority Judgment) [1998] FJCA 64
[he current judicial thinkininking on distress evidence
‘[43] Given that the weight of evidence as to distress will varyrdinghe circumstances nces of the case we consider that whether ther the evidence is admissible and if so whether a direction is needed and, if it is needed, then in what terms, depends much on the particular circumstances in any given case. In giving consideration to those questions a distinction can be drawn between the complainant’s own evidence of distress and evidence from a witness, who may be independent, as to the distress 20 of the complainant. A distinction can also be drawn between evidence of distress at the time or shortly after the alleged offence and distress displayed years later when making a complaint. If the js sure that dist distress at the time is not feigned then the complainant’s appearance or state of mind could be considerethe jury to be consistent with the incident.
[44] We consider ther that it is for the judge to look at the circumstances of each case and tailor the direction to the facts of the particular case emphasising to the jury the need, befory act on evidence of distress, to make sure that the distreistress is not feigned and drawing to their attention factors that may affect the weight to be given to the evidence.’
[17] Thus, I do not see any reasonable prospect of success in this ground of appeal.
01st ground of appeal (sentence)
[18] The appellant’s complaint is based on the sentencing error of ‘double counting’.
[19] In Senilolokula v State [2018] FJSC 5; CAV0017.2017 (26 April 2018) the Supreme Court has raised a few concerns regarding selecting the ‘starting point’ in the two-tiered approach to sentencing in the face of criticisms of ‘double counting’.
[20] The Supreme Court said in Kumar v State [2018] FJSC 30; CAV0017.2018 (2 November 2018) that if judges take as their starting point somewhere within the range, they will have factored into the exercise at least some of the aggravating features of the case. The ultimate sentence will then have reflected any other aggrng features of the the case as well as the mitigating features. On the other hand, if judges take as their starting point the lend o range, they will not have factored into the exercise any;of thef the aggr aggr aggravating factors, and they will then have to factor into the exercise all the aggravating features of the case as well as the mitigating features.
b> Nadan v State [2019] FJSC 29; CAV0007.2019 (31 October 2019) stated that the difficulty is that the appellate courts do not know whether all or any of the aggravating factors had already been taken into account when the trial judge selected as his starting point a term towards the middle of the tariff. If the judge did, he would have fallen into the trap of double-counting.
[22] It appears that what matters the trial judge considered under ‘objective seriousness’ in selecting the starting point at 13 years (02 years above the lower point) following Aitcheson ve[2018] FJS] FJSC 29; 29; CAV0012.2018 (2 November 2018) where sentencing tariff for child/juvenile rape was set at 11-20 y is near from the sentencing order. There can be a doubt whether the trial judge had thad taken aken into account the same or similar aggravating factors inadvertently, which were later considered to enhance the sentence by 06 years, to pick the starting point as well. If, so it amounts to double counting and has contributed to the final sentence.
[23] Therefore, I am inclined to grant leave to appeal against sentence on this ground of appeal.
[24] When a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step in the reasoning process that must be considered (vide Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006). In determining whether the sentencing discretion has miscarried 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)]. Therefore, it is for the full court to determine the ultimate sentence.
Orders
Hon. Mr. Justice C. Prematilaka
ACTING RESIDENT JUSTICE OF APPEAL
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJCA/2021/216.html
