IN THE HIGH COURT OF FIJI
At Suva
Criminal Jurisdiction

Criminal Appeal No. 32 of 1989

Between:

ILIESA TORA
Appellant

and

THE STATE
Respondent

Appellant in person
Mr. J. Naguilevu for the State

JUDGMENT

The appellant appeals against a sentence of 4 years 6 months imposed by the Nausori Magistrate Court after he was convicted on his guilty plea to an offence of Rape.

The brief facts of the case outlined by the police prosecutor were that on the day in question the complainant a 16 year old student was awakened by the appellant touching her private parts. He then managed to undress the complainant and smothered her yell for help by putting his hand over her mouth. The appellant then forcibly had sexual intercourse with the complainant after threatening to assault her if she cried out.

Three days later the complainant was medically examined and her medical report disclosed "no evidence of any injuries were seen". Doubtless the examination was a "physical" one. But rape is much more than a purely physical act. It is an offence which by definition is committed "without the consent" of the victim.

It cannot be ignored that such an offence is likely to be accompanied by a wide range of human emotions, fear, distress, shame, anger and even guilt.

In sentencing the appellant the learned trial magistrate said: 

"What you have done to the complainant is something which she wouldn't forget for the rest of her life. It has left a scar that will remain with her for a very considerable time. "

The appellant is for all intents and purposes, a first offender. He was born in April 1971 and at the time of the offence was not yet 18 years of age. He is a villager and to his credit had pleaded guilty showing remorse and more importantly in cases of this nature has saved the victim from the further embarrassment of having to testify in court.

The appellant has already served 10 months in prison and professes to have learnt a salutary lesson from that experience. He asks to be allowed to return to his village.

I am not unaware that the courts have increasingly been publicly criticised for the apparent leniency in the sentences passed in cases of Rape. Such criticism has been both informed and uninformed but in any event is welcomed as the right and duty of all concerned citizens in a democratic society.

I do not seek to apologise for individual sentences or magistrates but it must be pointed out that the legislature in its wisdom has provided only 1 solitary guideline for the offence of Rape, namely, a maximum penalty of life imprisonment with or without corporal punishment.

From this it is clear that our law does not fix the sentence for a particular crime, but only fixes a maximum sentence and leaves it to the Courts to determine what is, within that maximum, the appropriate sentence for each criminal in the particular circumstances of each case. Not only in regard to each crime, but in regard to each criminal, the Court has the right and the duty to decide whether to be lenient or severe.

In the nature of things maximum penalties are reserved for the most serious cases for which the law has provided. Furthermore Magistrates are by law limited to a maximum sentence of 5 years imprisonment for any single offence of Rape although they do have powers to commit to the High Court for sentencing in appropriate cases.

It is axiomatic that in this imprecise area of ideas opinions and thought, human beings to which class it is sometimes forgotten magistrates and judges themselves belong, are just as likely to differ as they are to agree on the length and suitability of sentences that ought to be passed in cases of Rape.

As was said by the NZ Court of Appeal in R. v. Puru [1984] 1 NZLR 248 at 249:

"The Judges do actually live in society and share with other citizens the same strong feelings concerning the uncivilised abuse and coercion of women which this crime represents. But their judicial obligation is to ensure that the punishment they impose in the name of the community is itself a civilised reaction, determined not on impulse or emotion but in terms of justice and deliberation."

The extent of such agreement or disagreement also depends on the presence or absence of formulated guidelines or rules and the degree of empirical evidence and learning on the particular subject matter. The courts cannot and do not act on editorials or public opinion columns.

This is not to say that courts are insensitive to public opinion or the legitimate concerns of the society it seeks to serve. Indeed the attitude of society to the particular crime is and has always been a factor to be considered in passing sentence but it is by no means the only or indeed the principal factor involved in assessing sentence.

In determining any sentence the courts are also guided by the classical principles of sentencing conveniently summed up in the four words: retribution, deterrence, prevention and rehabilitation.

Of these principles Lawton L.J. had this is say about retribution in R. v. Sargeant (1974) 60 Cr. App. R. 74 at p.77:

"The Old Testament concept of an eye for an eye and tooth for tooth no longer plays any part in our criminal law. There is however, another aspect of retribution which is frequently overlooked: it is that society, through the courts, must show its abhorrence of particular types of crime and the only way in which the courts can show this is by the sentences they pass. The courts do not have to reflect public opinion. On the other hand the courts must not disregard it. Perhaps the main duty of the court is to lead public opinion...... We are also satisfied that, although society expects the courts to impose punishment for violence which really hurts, it does not expect the courts to go on hurting for a long time......."

As for deterrence the learned judge said:

"There are 2 aspects of deterrence: deterrence of the offender and deterrence of likely offenders. Experience has shown over the years that deterrence of the offender is not a very useful approach, because those who have their wits about them usually find the closing of prison gates an experience which they do not want again. If they do not learn that lesson, there is likely to be a high degree of recidivism anyway. So far as deterrence of others is concerned, it is the experience of the courts that deterrent sentences are of little value in respect of offences which are committed on the spur of the moment, either in hot blood or in drink or both."

In this latter regard the NZ Court of Appeal said of the offence of Rape in R. v. Puru (op cit) at p. 250:

"It should be recognised that in all the research that has been done here and in other countries there is virtually no evidence which suggests that anything is achieved in a significant way to deter future rape offences when punishment which is already severe is made harsher still. In truth it is the kind of offending which is seldom the product of planning and deliberation or when the likely consequences of conviction are weighed in advance. If it is thought about at all by the offender it is on the basis that he will not be apprehended."

To allow 'public-outcry' to dictate sentences in Rape cases is to take the first steps back to mob-lynchings where an angry partisan crowd took the law into their own hands. It might be that thought could be given to allowing a rape victim a limited 'voice' in the sentence to be imposed on her assailant but that is a question better left for the consideration and determination of a Law Reform Commission and "Law-makers".

Then it is said that 'rape is rape' and that there are no "degrees" of rape. If that is a "truism" then the law itself (rather then its application by the courts) may need to be altered to more properly reflect it.

This may be achieved by the imposition of a fixed mandatory minimum sentence in all cases of Rape with an upward gradation dependant on whether it be accompanied by excessive violence, planning or is repeated or whether or not the victim is subjected to additional sexual indignities and perversions or has suffered especially seriously both physically and/or mentally.

In this latter regard it must be said that the courts have not been assisted in the past by psychiatric reports on victims, yet such an effect is often spoken of and written about in almost clichéd terms. Perhaps investigative and prosecuting authorities could bear this in mind in future cases.

In opposing the appeal State Counsel referred to the learned Chief Justice's Circular Memorandum No. 1 of 1988 directed to all Magistrates entitled: "GUIDELINES IN SENTENCING FOR RAPE" and from which I would respectfully repeat and adopt the following extracts where it is said: 

"A non-custodial sentence in a rape case must now be considered wholly inappropriate under any conceivable circumstance. For that matter too a prison sentence below two years should be regarded as exceptional since such a sentence can only be very rarely justified."

The appellant in this case received an immediate custodial sentence of 4 years 6 months as earlier pointed out.

However, and perhaps of particular relevance to this case is the paragraph: 

"The extra distress which giving evidence can cause to a victim means that a plea of guilty, perhaps more so than in other cases, should normally result in some reduction from what would otherwise be the appropriate sentence. The amount of such reduction will of course depend on all the circumstances, including the likelihood of a finding of not guilty had the matter been contested."

In this instance the learned trial magistrate acknowledged the appellant's guilty plea and granted him a reduction of 6 months on the maximum sentence the magistrate could have passed which presumably would have been 5 years had it been contested.

Why the learned trial magistrate should have considered that the starting point set out in the CJ's guidelines for Rape sentences in undisputed cases is 5 years is not clear and in any event is incorrect.

The Chief Justice's guidelines sets out the following as a suitable case for the imposition of a sentence of 5 years imprisonment, namely: 

"For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case."

Clearly then, in several respects the learned trial magistrate has "misdirected" himself. For instance, this appellant can hardly be classified as an "adult"; the case was not a "contested" one nor did the facts and circumstances disclose any of the aggravating features enumerated in the Guidelines.

In the circumstances this court is at liberty to interfere with this sentence which it does so by reducing it to one of 3 years imprisonment with effect from the 24th of January, 1989.
(D.V. Fatiaki)
JUDGE

Suva,
21st December, 1989.
HAA0032J.89S