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

CRIMINAL APPEAL NO. AAU 0095 of 2015
[In the High Court at Suva Case No. HAC 125 of 2011]

 BETWEEN: 	
SEREMAIA SUVEINAIKA
    Appellant

 AND:	
STATE
 Respondent

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

Counsel: Ms. S. Ratu and Ms. T. Kean for the Appellant 
 : Ms. J. Fatiaki for the Respondent

Date of Hearing: 10 February 2022 

Date of Judgment: 03 March 2022

JUDGMENT  

Gamalath, JA

[1]	I agree with the conclusion arrived at by Prematilaka, JA.

Prematilaka, JA

[2]	The appellant had been charged with six counts of incest by male contrary to section 178(1) & (2) of the Penal Code, Cap. 17 and one count of incest by a relative contrary to section 223(1)(2) of the Crimes Act, 2009. 

[3]	The trial had been conducted in the Magistrates Court, Nausori which found the appellant guilty of all charges and transferred the case to the High Court for sentencing.

[4] 	The High Court held in the sentencing order that the Magistrates court had jurisdiction only regarding the first six counts, and the seventh count was an indictable offence triable by the High Court only upon extended jurisdiction granted to the Magistrates Court under Section 4(2) of the Criminal Procedure Act, 2009. As no such jurisdiction was vested in this instance, the learned Magistrate had no jurisdiction to deal with seventh count and therefore the Magistrate’s decision on seventh count was declared null and void by the High Court. 

[5]	The High Court had sentenced the appellant on 9 July 2015 to 17 years’ imprisonment for all six counts to be served concurrently subject to a non-parole period of 16 years. He appealed against conviction and sentence and the single judge of this court had granted leave to appeal against conviction (one ground) and sentence (one ground). Only those two grounds were urged before this court.

[6]	Thus, the grounds of appeal for consideration are as follows:

		Conviction

THAT the Learned Magistrate erred in law and in fact in failing to give appropriate weight to the inconsistencies in the complainants testimony being that her father was sleeping in another room when the house had an open living area and not have divided rooms. 

Sentence

THAT the Learned Magistrate erred in law and in fact by finding that the appellant made the complainant to have an abortion when no medical evidence had been adduced to verify an abortion. 

Summary of facts

[7]	The appellant was 56 years old married with seven children. The complainant was his biological daughter. In 2005, when she was 12 years old, the appellant had forcible sexual intercourse with her. This had been repeated on numerous occasions in 2006, when she was 13 years old; in 2007, when she was 14 years old; in 2008, when she was 15 years old; in 2009 when she was 16 years old and in 2010 when she was 17 years old. The appellant throughout these years had threatened to kill her if she were to raise any alarm. In 2011, the matter was reported to the police.

[8]	The complainant had further revealed in evidence that the appellant summoned the mother to cover her face and mouth with a pillow before abusing her on the first occasion in 2015. He had threatened to kill both her and the mother if they were to tell the incidents to anyone. He had also a kept a sharpened knife with him. He had raped her once more in 2005. The appellant would abuse her one to three times a week in 2006. In 2007, the appellant would have sexual intercourse with her three nights over the weekend as during the rest of the week she was boarded at school. The complainant got pregnant in 2008 but the appellant continued to have sex with her and spread rumours that she had been raped. After a difficult delivery she had given birth to a child on 03 September 2008 and just two days after she returned home unable to walk property the appellant again wanted to have sex with her but she had refused saying that she was still carrying wounds. When the baby was one month old, the appellant resumed having sexual intercourse with her. She got pregnant again in 2009 and the appellant had taken her to Namala Medical Centre, Nadi for an abortion close to Christmas and her pregnancy was then 03 months old. The appellant had lied to the nurses about her age and told them that the complainant was married. He had continued to abuse her nearly every night in 2009. In 2010, she was boarded at school and during the weekend when she returned home the appellant used to have sex with her. The appellant had asked the complainant to come home from school saying that the mother was sick but she found out on her return that it was false and the appellant had made her come home under that false pretext as he wanted to have sex with her. She used to come home only during school holidays in 2011and and the appellant had forced her to have sex with him almost every day during this period. The appellant had told the complainant that she would not return to school but stay and have sex with him. At that point she decided to run away from home and ended up with an aunt (Vica Rasabasaba Suvenaika) who was the appellant’s youngest sister. Crying, she had told her aunt that the appellant had started raping her in 2005 and the rest of the incidents. Vica had boarded a bus with the complainant and gone to meet the complainant’s older brother (Alipate Navulovulo) who heard from the complainant what the appellant had done to her) and from there taken her to her uncle’s house (who was the appellant’s younger brother) where the complainant had told uncle’s wife Mereisi Caginicolo that the appellant had been engaged in sexual intercourse with her since she was in Class 7. Then the matter was reported to police.    

[9]		Vica Rasabasaba Suvenaika, Alipate Navulovulo and Mereisi Caginicolo had corroborated as to what the complainant had narrated to them. Dr. Yogeshni Chandra had stated that the complainant appeared mentally distressed and her hymen was not intact. She was having menses at the time she was examined by the doctor. 

[10]		The appellant had totally denied the allegations and said that the motive for the allegations was that he had spanked the complainant with a belt when he noticed photos of her having sex with a boy on her mobile phone. She however had denied ever having a boyfriend as the appellant did not allow her to socialise with boys. She had further said that the reason why she left home was because the appellant told her that she would not be going to school but staying at home as his wife along with her mother. Her explanation for not reporting the matter earlier was the constant fear instilled and threats issued by the appellant to kill her and the mother. Questioned as to why the appellant did not report the complainant’s pregnancy to police while the complainant was still schooling he said that he did not know that it had to be reported and many ladies anyway got pregnant.     

		Conviction appeal 

[11]	In Singh v The State [2006] FJSC 15; CAV0007U.05S (19 October 2006) and Ram v State 	[2012] FJSC 12; CAV0001.2011 (9 May 2012) the Supreme Court laid 	down as to what directions are needed to a jury on evidence inconsistent with a previous statement on oath or just a previous statement. The Supreme Court said in Ram: 
‘60.  We find that the above quoted direction is proper and fair. It is also consistent with the principle of the common law as expressed by Lord Parker CJ in Regina v Golder [1960] 1 WLR 1169 at page 1172 that "when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should......be directed that the evidence given at that trial should be regarded as unreliable." There may be exceptional circumstances in which the testimony of such a witness may be regarded as reliable notwithstanding the prior inconsistent statement, such as where the witness is able to give a convincing explanation for the  inconsistency, and it is also noteworthy that in Regina v Governor of Pentonville Prison, ex p. Alves [1993]284 AC 284, Lord Goff of Chieveley, with whom the other Law Lords agreed, stressed that "the credibility of evidence given by a witness inconsistent with a statement previously made was a matter for the jury to consider, subject to a proper warning by the judge as to the weight to be attached to the evidence."
61.  It is pertinent to note in this connection that in Swadesh Kumar Singh v The State [2006] FJSC 15 at paragraph 51, this Court emphasised that "where a witness has made a statement on oath directly inconsistent with evidence he or she gives in court and particularly when that evidence implicates the accused person, the assessors should be informed of the importance of statements made on oath. They should also be told that they should be cautious before they accept a witness's sworn evidence that conflicts with a sworn statement the witness previously made. Having said that, this Court also went on to lay down the following guidelines for trial judges:- (emphasis added): 
“The judge should remind the assessors of the explanations given by the witness for the earlier sworn statement and instruct them that the evidence in court should be regarded as unreliable unless the assessors are satisfied in two particular respects. Firstly, that the explanations are genuine. Secondly, that, despite the witness previously being prepared to swear to the contrary of the version the witness now puts forward, he or she is now telling the truth." (emphasis added)”’

[12]	On the other hand, how to assess and evaluate the effect of any material contradictions, inconsistencies and omissions, on a conviction was laid down in the case of Nadim v State [2015] FJCA 130; AAU0080.2011 (2 October 2015) as follows:
‘[13]   Generally speaking, I see no reason as to why similar principles of law and guidelines should not be adopted in respect of omissions as well. Because, be they inconsistencies or omissions both go to the credibility of the witnesses (see R. v O’Neill [1969] Crim. L. R. 260). But, the weight to be attached to any inconsistency or omission depends on the facts and circumstances of each case. No hard and fast rule could be laid down in that regard. The broad guideline is that discrepancies which do not go to the root of the matter and shake the basic version of the witnesses cannot be annexed with undue importance (see Bharwada Bhoginbhai Hirjibhai v State of Gujarat [1983] AIR 753, 1983 SCR (3) 280)’

[13]	In Turogo v State [2016] FJCA 117; AAU.0008. 2013 (30 September 2016) and Lulu v State [2016] FJCA 154 (29 November 2016), the Court of Appeal further elaborated this matter by quoting from Bharwada Bhoginbhai Hirjibhai (supra) as follows: 

‘[35]………..(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen; (2) ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details; (3) The powers of observation differ from person to person. What one may notice, another may not. ...... It is unrealistic to expect a witness to be a human tape recorder;(4)….; (5) ……; (6) …….; (7)…….”

[14]	None of the alleged inconsistencies relate to the complainant’s previous statements. The appellant points out that in examination-in-chief the complainant had said that on the first day the appellant was sleeping in another room separated by a curtain but under cross-examination she had only mentioned a curtain. But, it is clear that she had not denied that the appellant was sleeping in another room but only reiterated that there was a curtain separating the rooms.  

[15]	The appellant also contends that according to the complainant (under cross-examination) she had not stayed out with anyone earlier instead of coming home to face the ordeal as the appellant had not permitted her to go to another house and if she did he would spank her, whereas the evidence of her aunt Mereisi Caginicolo shows that the complainant had indeed visited them first in early 2011 during school holidays and then again to narrate her horrific experience with the appellant.  However, when the totality of evidence is considered it becomes clear that she had not disclosed her plight to anyone or stayed out with anyone to avoid the appellant because he had threatened her and she was scared of him. He had also threatened that she could not escape from him. The reference to ‘another house’ does not appear to refer to relatives’ homes but merely those of outsiders such as friends.    

[16]		The appellant also points out that according to the complainant the last incident happened on 08 August 2011 whereas her aunt Vica Rasabasaba Suvenaika had stated that the complainant told her as to what happened to her on 07 April 2011. What is undisputed is that the complainant had informed her aunt of the distasteful events the day after the last incident. I do not think that this is a material inconsistency.    

[17]		The appellant also raises an issue with the complainant having told her aunt Vica Rasabasaba Suvenaika that she was having an extra marital affair with the appellant since she was in Class 7 in 2005. Vica had first told court that the complainant had told her that the appellant raped her but later agreed with her police statement where the term extra marital affair was used. The complainant’s other aunt, Mereisi Caginicolo had first used itauki word ‘tiko vata’ and then ‘veicai’ to describe what the complainant had told her. The complainant had not been confronted with this position when she gave evidence. In any event, whatever way it was described and whatever the terms used it is clear that the complainant had never consented to sexual intercourse with the appellant. In any event, consent is immaterial as far as the offence of incest by males is concerned.
[18]	Therefore, all in all what the appellant has contested as inconsistences are either not inconsistencies at all or they are not material to the prosecution case. None of them go to the root of the case against the appellant and shake the foundation of the complainant’s evidence.  The counsel for the appellant admitted that they were not even pointed out as such to the Magistrate by the trial counsel. Thus, no material prejudice had been caused by the failure of the Magistrate to go into them in the judgment. Accordingly, the appeal against conviction has no merit and should be rejected. 

		Sentence appeal 

[19]	When a sentence is challenged in appeal the appellate court will see whether the trial judge (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  [vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013] FJSC 14; House v The King [1936] HCA 40;   (1936) 55 CLR 499, Kim Nam Bae v The State Criminal Appeal No.AAU0015 and Chirk King Yam v The State Criminal Appeal No.AAU0095 of 2011]. 

[20]		The ground on which the sentence is challenged is based on the following paragraph under aggravating factors in the sentencing order.

		‘(iii) By committing these offences, you have ruined your daughter's life. You made her pregnant, and now she had your child. You later made her pregnant again and you made her have an abortion. You basically turned her into your wife. You had no regard whatsoever to her right as a child, and her human rights

[21]		The appellant argues that there was no medical evidence to prove the fact that the he made the complainant pregnant and had her deliver a child and again made her pregnant and had an abortion done. It is clear from evidence that it was none other than the appellant who continuously sexually abused the complainant from 2005-2011 during which period she delivered a child and had her second pregnancy terminated at the instance of the appellant. No medical evidence was needed to establish those facts. The complainant’s evidence was quite sufficient. 

[22]	The appellant also contends that the incident involving the abortion should not have been used as an aggravating factor in as much as he had not been charged in relation to the abortion. If he had been charged regarding any role in the abortion and convicted he could have been sentenced separately for that offence. However, in the absence of any such charge, it was open to the sentencing judge to have considered the same as an aggravating factor in sentencing the appellant for the offences of ‘Incest by males’. 

[23]	Section 178(1) of the Penal Code provides that any male person who has carnal knowledge of a female person, who is to his knowledge his granddaughter, daughter, sister or mother, is guilty of a felony, and is liable to imprisonment for seven years. However, if it is alleged in the information or charge and proved that the female person is under the age of thirteen years, the offender shall be liable to imprisonment for life.

[24]		The complainant was born on 01 June 1993. Therefore, until 01 June 2006, she was under 13 years of age. Thus, in so far as the first and second charges are concerned the appellant was liable to life imprisonment. 

[25]		The Supreme Court held that it is the ultimate sentence that is of importance, rather than each step in the reasoning process leading to it and 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. It was also held that the approach taken by appellate courts 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 [vide Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006) and Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015)].

[26]	Had the complainant not run away from the appellant there was every chance that he would have made her pregnant again with unprotected sexual intercourse and possibly got her to undergo another abortion or deliver another child as he had claimed that the complainant would be expected to fill in the role of his wife. The complainant would have been subjected to lifetime sexual exploitation to satisfy the appellant’s insatiable lust. She would also have been reduced to a permanent sex slave. Her right to education would have been taken away cruelly forever.  

[27]		It is axiomatic that the purpose of the criminal law is to deter not only the offender but also others who might consider breaking the law. One of the main purposes of punishment is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment (vide R v Radich [1954] NZLR 86; R v Goodrich (1955) 72 WN (NSW) 42 and R v Hamieh [2010] NSWCCA 189 at [63]). 

[28]		In R v Radich (supra) it was also held as follows:

	‘If a court is weakly merciful and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentence are such as to operate as a powerful factor to prevent the commission of such offences 
	The Court of Appeal, in considering an application for reduction of sentence, must be reasonably satisfied that the sentence is manifestly excessive or wrong in principle, or there must be exceptional circumstances calling for its revision.’

[29]	I think specific or personal deterrence should be applied where an offender has continuously sexually exploited a hapless victim over a period of time similar to a person with a prior criminal record which manifests a continuing attitude of disobedience and therefore more weight should be given to retribution, personal deterrence or protection of the community (See Veen v The Queen (No 2) (1988) 164 CLR 465 at 477; R v Rice [2004] NSWCCA 384 at [26]; R v Abboud [2005] NSWCCA 251 at [33]; R v McNaughton (2006) 66 NSWLR 566 at [54]. 

[30]		There is no error as argued by the appellant in the sentencing process and I have no doubt that the ultimate sentence fits into the gravity of the heinous crime of which the appellant had been found guilty. Accordingly, the sentence appeal too should be dismissed. 

Bandara, JA

[31]	I have read the draft judgment of Prematilaka, JA and agree with his reasoning and conclusions. 

Orders 

(1)	Appellants’ appeal against conviction is dismissed.
(2) 	Appellants’ appeal against sentence is dismissed.

						
Hon. Mr. Justice S. Gamalath
JUSTICE OF APPEAL

		Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL

		Hon. Mr. Justice W. Bandara 
JUSTICE OF APPEAL