IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CRIMINAL APPEAL NO. AAU 053 of 2016
[In the High Court at Suva Case No. HAC 14 of 2013]

BETWEEN: 	
KAMELI SAUDUADUA
    Appellant

 AND:	
STATE
Respondent

Coram: Gamalath, JA 
           : Prematilaka, JA 
           : Bandara, JA

Counsel: Ms. S. Ratu for the Appellant 
 : Mr. M. Vosawale for the Respondent

Date of Hearing: 08 February 2022 

Date of Judgment: 03 March 2022

JUDGMENT  

Gamalath, JA

[1]	I have read in draft the judgment of Bandara, JA and I agree with his reasoning and the conclusion. 

Prematilaka, JA

[2]	I agree with the reasons and orders propose by Bandara, JA. 

Bandara, JA

[3]	The Appellant had been charged before the High Court at Suva with two counts of rape, one penile and the other oral contrary to section 207 (1) and 207 (2) (a) of the Crimes Act 2009. 

[4]	The information read as follows:

         “Third Count
    Statement of Offence 

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.

    Particulars of Offence 

KAMELI SAUDUADUA, on the 16th day of December 2012, at Navua in the Central Division had carnal knowledge of (name suppressed), without her consent. 

         Fourth Count
    Statement of Offence 

RAPE: Contrary to Section 207 (1) and (2) (c) of the Crimes Decree No. 44 of 2009.

    Particulars of Offence 

KAMELI SAUDUADUA, on the 16th day of December 2012, at Navua in the Central Division penetrated the mouth of (name suppressed), without her consent.”

	The outcome of the trial before the High Court

[5]	At the conclusion of the trial the three assessors unanimously opined that the Appellant was guilty of the two counts. 

[6]	The Learned High Court Judge concurred with the assessors’ opinion, convicted the Appellant on both counts and on the 25th of September 2015, sentenced him to a total of 10 years imprisonment (i.e. 09 years each on both counts but in respect of the second count the period of 9 years to start running one year after the date of sentence on both counts) with a non-parole period of 8 years.  

	The appellate process

[7]	When the matter was called before the single Judge of the Court of Appeal for the first time, it had been recorded that the appeal was out of time by 07 months.

[8]	On the 18th of February 2019 an amended petition of appeal had been filed on behalf of the Appellant seeking enlargement of time which had contained two grounds of appeal against the conviction and one ground against the sentence. 

[9]	On the 6th of June 2019 the single Judge of appeal had granted enlargement of time only on the third ground of appeal against the sentence, which reads: 

		“Ground 3 (sentence)

	 THAT the Learned Trial Judge erred in law and fact when he sentenced the Appellant with a one (1) year consecutive without any consideration for any special circumstances to justify the same which was prejudicial to the Appellant.”

	Brief summary of the facts of the case

[10]	On the day of the incident the victim had been drinking beer at the Navua Club, spending the whole day and remaining there until, the club’s closing time at 1 am. 

[11]	What happened thereafter has been accurately summarised by the Learned High Court Judge in paragraphs 12 and 13 of his summing up, having regard to the victim’s testimony: 

“[12]	The victim in this case was the lady whose identity I want to protect, so I am going to call her Tessa. Tessa told us that on a Saturday morning she went with two of her Uncles to the Navua Club to drink beer. She remained there until the club closed up that night which was about 1 a.m. She left and went downstairs and was talking to somebody. As she was talking somebody came up from behind and held her. He punched her on the face and she fell to the ground. She tried to kick him and tried to shout but she was slapped and her panties removed. It was then that he put his penis inside her. She said she was shocked and felt terrible and she certainly hadn’t agreed for him to do that. When he had finished, she was dragged to the grass area and then she saw a group of faces – more than five. They were stepping on her and trying to open her legs and about 4 of them inserted their penises inside her vagina. One of the men tried to force his penis inside her mouth. She moved her head away but he persisted and managed to get it in about “one quarter”, another act she did not consent to. At that stage a Police vehicle came; the men ran away and climbed over the fence. Somebody gave her clothes to wear and she went to the Police Station to help them enquire into the incident.

[13]	Tessa said that although she was at the Club for a long time, she was not drinking all of the time and she was very aware of what was happening. She knew the men concerned and she was able to identify them in Court.”

[12]	Summary of the testimony of the Appellant is found at paragraph 27 of the summing up which reads as follows:

“[27]	Kameli, the third accused said that he saw another having sex with the girl and he went and asked if he could have sex too. He then inserted his penis into her vagina (penetration) and had sexual intercourse with her for about 2 minutes. He says he then made her suck his penis.”

	Proceedings before the Full Court

[13]	An amended notice of appeal was filed on behalf of the Appellant by his counsel on the 29th of May 2020, pursuing the following ground of appeal against the sentence:

‘THAT the Learned Trial Judge erred in his sentencing discretion by imposing an additional year of imprisonment on the Appellant on account of count 02 (probably referring to Count 4) as a consecutive sentence to the sentence on count 01 (probably referring to Count 3).’

[14]	At the hearing before the Full Court, the Defence confined it’s arguments only to the ground of appeal contained in the said amended notice of appeal. 

[15]	Section 22 of the Sentencing and Penalties Act states as follows:

“22.-(1) 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.

(2) Sub-section (1) does not apply to a term of imprisonment imposed–

(a)   in default of payment of a fine or sum of money;
(b)  on a prisoner in respect of a prison offence or as a result of an
       escape from custody;
(c)   on a habitual offender under Part III;
(d)   on any person for an offence committed while released on
        parole; or
(e)   on any person for an offence committed while released on bail
       in relation to another offence.”

[16]	Provisions of the sub-section (2) of the Section 22 of the Sentencing and Penalties Act has no application to the impugned sentence. 

[17]	In terms of the default position under section 22 of the Sentencing and Penalties Act all terms of imprisonment must be served concurrently. 

[18]	In the present appeal the Learned High Court Judge, justifying his decision in directing a year to be served consecutive to the concurrent sentence, had made the following remarks:

“He later forced himself into the victim’s mouth. Although this has been charged as a separate count of rape, it is a further indignity inflicted on the vulnerable and subjugated victim and he must therefore be additionally punished over and above the usual concurrent sentence.”

“[21]	For the second (oral rape – Count 4) I also pass a sentence of nine years imprisonment. This term will commence one year from today which means he will serve eight years of the second sentence currently with the first and one year consecutively.”

[19]	On the term “unless otherwise directed” in section 22 (1), the Supreme Court in Vaqewa v State [2016] FJSC 12; CAV0016.2015 (22 April 2016) held that:

“[31]  I have set out earlier section 22(1) of the Sentencing and Penalties Decree. In deciding to direct otherwise from the purport of that section, a court ought to state its reasons for doing so. That at least would be the best practice approach, if not a requirement under the section. Here the single judge found reason enough in that “the consecutive sentence was justified to protect the community.

 [41]	The second problem relates to the Magistrate’s power to order the sentences to be served consecutively to each other. The Chief Justice has set out sections 22(1) and 22(2) of the Sentencing and Penalties Decree in para 13 of his judgment. In my opinion, the proper construction of these provisions is as follows. The default position is that any term of imprisonment passed on someone by a court has to be served concurrently with any sentence of imprisonment he is currently serving. There are two situations in which the default position must or may be disapplied. It must be disapplied in any of the five circumstances set out in section 22(2). That is the effect of the opening words of section 22(1) – “Subject to sub-section (2) ...” – and the opening words of section 22(2) – “Sub-section (1) does not apply ...” In addition, though, even in a case which does not come within any of the five circumstances set out in section 22(2), the default position may be disapplied. That is the effect of the words “unless otherwise directed by the Court” in section 22(1).”

[20]	In Vukitoga v State [2013] FJCA 19; AAU 0049.2008 (13 March 2013), in relation to the issue of the Court directing a consecutive sentence, the Court of Appeal held that: 

“[23]	Guidance for this situation can still be gleaned from the earlier decision of the Supreme Court in Joji Waqasaqa (supra) by analogy. If the Court said (and it did) that where the “default” position was consecutive, then a Court would have to give “reasoned justification” to depart from that position in making sentences concurrent, then a Court must now when the “default” position is concurrency make a reasoned justification to depart from the “default” position in making sentences consecutive or partly consecutive.”

[21]	 However, the reasons of the Learned High Court Judge (as considered in paragraph 18 above) given in justification, in ordering one year consecutive term to a concurrent term, flow from the elements of the offence of the fourth count, namely oral penetration.  

[22]	The Learned High Court Judge’s reasoning for directing a year to be served consecutively does not amount to a reasoned justification. 

[23]	In Naisua v State [2013] FJSC 14; CAV 0010.2013 (20 November 2013) it was held that:

“Appellate Courts will interfere with a sentence if it is demonstrated that the trial judge made one of the following errors:

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.”

[24]	For the foregoing reasons, I am of the view that the impugned ground of appeal against sentence succeeds. 

Orders 

1)	Order directing that the 09 years’ imprisonment on count 4 should commence one year from 25th September 2015 is set aside.
2)	09 years’ imprisonment on count 4 should run concurrently to the 09 years’ imprisonment on count 3.
3)	Both sentences of 09 years’ imprisonment with 08 years’ non-parole period on counts 3 and 4 should commence from 25th September 2015 and run concurrently. 

						Hon. Mr. Justice S. Gamalath
JUSTICE OF APPEAL

		Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL

		Hon. Mr. Justice W. Bandara 
JUSTICE OF APPEAL