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Director of Public Prosecutions v Ah Sam [1994] FJHC 126; Haa0037d.94s (23 September 1994)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0033D OF 1994

Between

DIRECTOR OF PUBLIC PROSECUTIONS
Appellant

And

HERMAN AH SAM
Respondent

Counsel: Mr. D. McNaughtan for Appellant
Mr. T. Fa for Respondent

Hearing: 21 September 1994
Decision: 23 September 1994

ORAL RESERVED DECISION OF PAIN J.

At the conclusion of the hearing on Wednesday I adjourned the case until today to read the authorities submitted by Counsel and consider some issues which concerned me. Having done that I am now in a position to deliver my decision.

This is an appeal by the Director of Public Prosecutions against the sentence imposed on the Respondent in the Magistrates Court. He was charged in that court with an offence under Section 156 of the Penal Code. The particulars of the offence alleged in the information were that the Respondent "on the 1st day of January 1993 to the 31st day of January 1993 at Lami in the Central Division had unlawful carnal knowledge of Dennis Hicks, a girl of the age of l5 years 1 month".

The Respondent first appeared in the Magistrates Court on the 9th of July 1993 and pleaded not guilty to the charge. Following several adjournments the case was ready for hearing on the 27th of January 1994. The parties and all witnesses were present. After the case had been stood down for a period at the request of his counsel, the Respondent changed his plea to guilty. The facts were outlined to the Court by the Police Prosecutor. Counsel for the Respondent made submissions in mitigation. The Learned Magistrate then made some brief remarks and sentenced the Respondent to l8 months imprisonment suspended for 2½ years. He also fined the Respondent $100.00. A petition of appeal on behalf of the Director of Public Prosecutions dated the 1st of February 1994 together with the copy of the record in the Magistrates Court was remitted to this Court on the 22nd of April l994.

During the hearing before me, Counsel referred to facts and conduct at the hearing in the Magistrates Court which were not included in the record. This raises difficulties because this court must determine the appeal on the basis of the record. In the absence of specific agreement between the parties, additional facts or matters should be introduced in accordance with the provisions of the Criminal Procedure Code.

No purpose would be served by traversing these specific matters in detail. I will determine the appeal on the basis of the record. It would be quite wrong for me to speculate on matters outside that record and I am certainly not saying that any irregularity has been shown to have occurred in this case. However for the guidance of Prosecutors, Counsel and Magistrates, I make the following observations.

1. If Counsel wish to dispute or add to the record, appropriate steps must be taken before the hearing of the appeal. An application can be made to this Court pursuant to Section 320 of the Criminal Procedure Code for further evidence to be adduced. Alternatively an application can be made to this Court for leave to supplement the record in accordance with the Chief Justice's Practice Direction No.2 of 1982. As far as I am aware this direction has not been countermanded.
   
2. It is essential that Magistrates should be given all relevant information and circumstances for the purposes of sentencing. Prosecutors should ensure that a comprehensive summary of facts is given when a plea of guilty is entered. This should contain all relevant background information and details of the Commission of the offence. It would be of considerable assistance if this was given in typed form so that it can become part of the record.
   
3. A Magistrate's recorded reasons should be as comprehensive as the circumstances of the case warrant. This is especially required when the Magistrate imposes a sentence or adopts a course which he acknowledges to be unusual for the particular type of case.
   
4. When a plea of guilty is entered any Judicial Officer must be scrupulously careful not to influence that decision in any way and be conscious of the dangers inherent in indicating any likely sentence. The directions given in R v. Turner 2 QB 321 and applied in later cases provide good practical guidance for counsel and all Judicial Officers.
   

With these observations I turn to the determination of this appeal. The record is rather brief but sufficiently covers the basic matters. Further information regarding the circumstances of the offending and relationships of the persons involved would have been helpful. However there has been no application to supplement the record and I am not prepared to speculate on extraneous matters raised by Counsel.

The basic facts are clearly discernable from the record. The Respondent lives in a de facto relationship with the complainant's aunt and they have two children. The complainant had her own room in their house and it is implicit in the record that she was living in the Respondent's home. On the day of the offence in January 1993 the Complainant was in her room, studying. At 2.30pm the accused entered her room and began to touch her breasts. She tried to escape but he pulled her on to the bed and had sexual intercourse with her. The complainant's aunt arrived home and the complainant ran out of the house. At the time the complainant was aged l5 years 1 month and the Respondent was aged 47 years. According to Counsel's submissions to the Magistrate, the two had previously had sexual intercourse a lot of times. Several months later a complaint was made to the Police. The complainant was medical examined on the 23rd of June 1993. The Respondent was interviewed and admitted the offence.

As the Learned Magistrate noted, this was a serious offence. To impose the suspended prison sentence, the Magistrate must first have concluded that the offence warranted imprisonment and l8 months was the appropriate term for an immediate sentence. He then decided that there were factors that justified the suspension of that sentence. The real issue in this case is whether that decision to suspend a prison sentence was appropriate. This court should only interfere if that suspension and/or the prison term fixed, made the sentence unduly lenient. That is to say outside the bracket of sentences, a Magistrate could reasonably impose on the facts presented before him. (See Attorney General's References No. 30 & 31 of 1992 (1993) 14 Cr. App. R. (S) 386).

I agree with Counsel for the Appellant that the few specific reasons given by the Magistrate do not justify such leniency. He said that at the time of the incident the complainant was not a virgin and showed no signs of injury. Those observations could only have been based on the report of the medical examination made 5 months after the event. The complainant could hardly have been a virgin after the Respondent had committed the offence. The impossibility of this is highlighted by the submission that sexual intercourse had also occurred on earlier occasions. It is not known whether or not the complainant was a virgin at the time the Respondent first had intercourse with her. The Magistrate also observed that the Respondent had pleaded guilty and saved further embarrassment to the complainant. However that factor must be considered in context. According to the record the Respondent had been fully cooperative giving an eight page statement and admitting the commission of the offence. The complainant had nevertheless been under the stress of a proposed defended hearing and was required to attend the court on more than one occasion.

The Magistrate also said that "on the facts of the case", an immediate custodial sentence would not be proper and this has been stressed by counsel for the Respondent. It is therefore appropriate to look at those facts to see what sentence is appropriate for this particular offending.

I have found the authorities cited by the Counsel for the Appellant most helpful. Each case must necessarily turn on its own facts. However Lord Justice Lawton's description in R. v Taylor & Ors. 1977 64 Cr. App. R 182 at page 185 of the "wide spectrum of guilt which is covered by this offence", has been widely followed and remains pertinent today. It succinctly illustrates there could be a transgression that has minimal culpability and would not require a sentence of a punitive nature. But at the other end of the scale a man in a supervisory capacity who abuses his position of trust for his sexual gratification ought to get a sentence somewhere near the maximum allowed by law. The case of Neori Turaga v The State Cr. App. No. 43 of 1992 shows that these principles have been broadly followed in Fiji.

Counsel for the Respondent submitted that the English authorities may not be applicable in Fiji. In support of this he drew the court's attention to the proviso to Section 156 which provides a defence if the person charged had reasonable cause to believe and did in fact believe that the girl was of or over the age of l6 years. He said that this defence, so far as he could ascertain, does not exist in England. However Section 6(3) of the Sexual Offences Act 1956 provides a similar defence in England although it is limited to persons under the age of 24 years who have not previously been charged with a like offence. Counsel made further submissions about the proviso to Section l56 of the Criminal Code and suggested that it may have influenced the Magistrate on the assumption that the Magistrate saw the complainant in Court. There is nothing in the record to support that and it was certainly not stated by the Magistrate as a reason for extending leniency. The proviso has no influence on sentencing in this case.

In my view, the facts of this case called for the imposition of an immediate prison sentence. The Respondent was the de facto husband of the complainant's aunt. He could be described as the senior man if not the father figure in the house in which the complainant was living. He must have had some responsibility for her well being. The age disparity was great. His obligation was to protect this girl not to defile her. It is despicable and deserving of criminal censure that in those circumstances he should take advantage of her to satisfy his own lust. There is nothing in the record to indicate that the complainant was precocious although that would be of little relevance in this situation. The summary states that she tried to escape when the accused made his advances to her on this occasion. I have no hesitation in concluding that in imposing a suspended prison sentence the Magistrate was unduly lenient. On the facts of this case an immediate prison sentence is the only sentence that should be imposed.

I do not overlook the other submissions of Counsel. The late plea of guilty and the fact that the complainant was just into her 16th year are factors that can be taken into account. However they do not justify a suspended sentence. At best they are only factors to be taken into account in fixing the term of the immediate prison sentence.

It would be quite inappropriate to accede to Counsel's request to remit the case back to the Magistrates Court for hearing before another Magistrate. The Respondent pleaded guilty and the facts were presented to the Magistrate and are detailed in the record. Full submissions have been made by both Counsel and this Court can make a final determination of the case.

The circumstances of the offending warrant a substantial prison sentence. However the facts presented by the prosecution do not show that the Respondent was in loco parentis or such a supervisory capacity to the complainant as to justify a sentence close to the maximum. The Court cannot speculate on that matter and must decide the sentence on the facts given. Furthermore in fixing the term I must bear in mind that this is an appeal by the State. The Respondent has already been sentenced. He has had to bear the uncertainty of this appeal and the anguish of now having a more severe penalty imposed. I also have regard to his personal circumstances.

Nevertheless the circumstances of this offending are very serious. Taking into account all the favourable matters the least term that could properly be imposed is two years imprisonment.

The sentence imposed in the Magistrates Court is quashed. The Respondent is sentenced to two years imprisonment.

JUSTICE D.B. PAIN

HAA0037D.94S