Date of Hearing:15 April, 1998
Date Of Delivery of Judgment:22 April, 1998
JUDGMENT
On the 2 February 1998, the Appellant was charged before Mr Jitend Singh in Nausori Magistrates Court that contrary to Section 154(1)
of the Penal Code, Cap. 17, he on the 29th day of January 1998, at Toga, Rewa, in the Central Division, unlawfully and indecently assaulted a girl,
namely Natasha Shayal Kumar, d/o Satish Kumar.
The learned Magistrate's Record shows:-
"2/2/98 Charge read explained: Accused-I understand the charge."
Plea: Guilty.
Facts: Accused and complainant are closely related. Complainant is cousin sister of accused. She is 3 years old.
On 29/1/98 at 9:00a.m. at Toga, Rewa, the complaintant's mother who is a market vendor came to Nausori Market to sell vegetables.
Before she left, the victim was left in the charge of the grandmother. The accused stays with the victim's family together with mother
of accused who is divorced. While mother was in market, accused went to the room of grandmother and took victim to a room upstairs,
removed the panties of the victim and erected his penis. He rubbed penis on buttocks of victim 10 to 15 times and when he was about
to ejaculate, he left semen on bedspread. He then made the victim to roll on the bed as a result of which semen covered her abdomen.
By then one Karun Michael Sundar a cousin of accused arrived there. He saw accused naked and lying on top of the victim. Chandra
Wati also came and saw victim naked and accused putting on his clothes. Chandra Wati noticed sperm on the bed sheet and some on the
abdomen of the victim. Chandra Wati informed victim's mother who reported to police. Accused traced and brought to Station where
he was interviewed in relation to the matter. Accused admitted the offence. Victim was medically examined.
Facts admitted. Found guilty and convicted as charged.
Mitigation
I am 18 years old, single. I am a student at F.N.T.C. I want to complete my studies at F.N.T.C. Accused wants mother to mitigate.
VIDYA WATI f/n Muni Prasad, Toga, Nausori, Garment Worker, Suva. Sworn on the Ramayan, in Hindi. I know my son has committed a crime.
I ask court to exercise mercy as he is still schooling as I want him to complete his education. First, I undertake to take care of
my child. Apart from my child I have nobody to support me. Environment at where we stay is not so good where my son committed the
crime. At present after divorce, I am living with my brother and sister-in-law. Most of the time my brother and sister-in-law work
overtime. They leave their child to be looked after by my son. Sometimes they send their child to sleep with my son they come late
at night. They also ask my son to change the child's clothes. I think that must be the fact that led my son to commit this crime.
I kindly request you to give my son a chance to stay in school like Montfort Boys Town where he can complete his education and earn
money for us to earn a better living in future. At present where we are living most of the time my son is asked to plant vegetable
for them. He is also asked to milk cows at 7.00a.m., look after the house, spray vegetables, harvest cauliflowers. During cyclone
'Susan', my son was picking beans during rain.
(a) That he was not legally represented and/or that he did not have the full knowledge or the capacity to understand the nature of
the charge or the offences for which he was charged.
(b) That the Appellant pleaded guilty to the charge under compulsion and/or duress from the police while being retained in custody
before being taken to the court house to answer the charges against him.
(c) That the Appellant only pleaded guilty on the advice of the police prosecutor and as such the guilty plea only came from the lip
(sic) of the accused but not from his mind as required under law.
(d) That the sentence of 18 months' imprisonment is manifestly harsh and excessive.
(e) That the learned Magistrate erred in fact and in law when he failed to take into consideration the principles of sentencing.
On the same day he filed a Notice of Motion in the Nausori Magistrates Court seeking bail pending the Appeal to the High Court.
In an affidavit in support of his bail application, the Appellant said he was kept incommunicado, threatened, did not properly understand
what the police were asking him and being frightened, signed all documents on the advice of the police. He was promised that if he
did, he would be let go home to his mother.
This promise was broken and the Appellant was kept in custody overnight. In the morning the Investigating Officer, Const. Satish threatened
that if he did not plead guilty he would be kept in custody for a number of months, but that if he pleaded guilty he would be discharged
because he was a student and would be allowed to go home.
Pointedly, there was no allegation of being hit over the head. This claim only surfaced in the later Affidavit of 5 April. This is
a disquieting feature. The Appellant continued that, at that material time, he was not sure regarding the offence for which he was charged and therefore pleaded guilty.
The Appellant then quite plainly swore on oath in this Affidavit that at the Nausori court house the prosecutor also told him that he must plead guilty so that he could go home and join his mother.
(It must be importantly noted that this allegation against the police prosecutor, though as confidently asserted as the rest, was
withdrawn at the hearing of the Appeal.)
The Appellant asserted that he had no knowledge what that offence of Indecent Assault was, nor had he understood the charge for which
he was charged.
He said, again importantly, "I took the advice of the Police officers and pleaded guilty." He continued, that when the charge was read to him Const. Satish was behind him and was pulling his shirt and telling him to plead
guilty and as such he pleaded guilty.
The Appellant further deposed that he had just completed Form 6 and had been enrolled at the Fiji National Training Council Centre
to start architectural training the next week (which presumably was the week commencing 9 February.) The bail hearing took place
on 11 February 1998, and bail was refused. The application was renewed to Pain J. who saw exceptional reason to grant it on 13 February,
1998, mainly to allow the Appellant to enrol and start his architectural Course.
The Appellant's mother, Vidya Wati, swore an Affidavit in support of her son. She alleged that she was told by police not to accompany
her son to Nausori Police Station at 2: 30pm on Sunday, 1 February 1998 as they would have him back that evening.
Surprisingly, when he did not return she did nothing about it until the following morning 2nd February, 1998.
She went to Court and claimed to have seen Const. Satish warning her son to plead guilty. She saw the Appellant's face, very disturbed,
worried, and frightened.
She said it seemed that he didn't know what he was doing. In her view, the Appellant was still immature, and did not have the full capacity to know
or understand the charges that have been put to him.
In the Court House, the mother quite plainly swore on oath she saw and heard the police prosecutor advising her son that he should plead guilty to avoid going to prison, further that he would be released from custody.
She continued that she and the Appellant believed the prosecutor and acted on his advice. But to their surprise the Appellant was
sentenced to 18 months' imprisonment.
This most serious and detailed allegation against the police prosecutor has now been formally withdrawn in open Court. This is most
disquieting.
This Court can only take the view that this was a concoction by mother and son that they are not now prepared to go on with. How could
a solicitor taking instructions make any mistake as to the identity of the police officer indulging in such behaviour? And as to
his detailed words?
There are detailed words attributed to the police prosecutor which now turn out to be false, and are not urged any further. The detailed
words of the prosecutor are not now transferred to Constable Satish. He is only said to have pulled the Appellant's shirt to plead
guilty, and earlier to have urged the Appellant to plead guilty and being a student, he would be discharged.
As to the allegations against Const. Satish Lal, the State has filed an Affidavit from him in which he denies completely the allegations
against him.
He says he spoke only to the victim's mother. The Appellant was called from the field and told there was a case against him and it
was desired to take him to the Police Station. The Appellant did not say anything. He just sat in the police van. By inference, there
was no conversation with the Appellant's mother about returning her son that same evening.
He then interviewed the Appellant under caution and he admitted the offence. There is no point-to-point rebuttal of the Appellant's
allegations of hitting him over the head; or threatening him, or inducing him to make admissions by a promise he would be allowed
to go home.
Const. Satish contented himself with the general assertion that he did not discuss his case with the Appellant. He denies he touched
the Appellant in Court.
What is a High Court Judge to do when faced like this, with assertion and counter-assertion?
The Appellant's counsel was unable to provide the Court with any authority as to the procedure to be adopted. It cannot surely be
the position that every time an offender raises such allegations, the High Court must hold a trial, which might sometimes be lengthy,
of the issues.
Ms Kelly, for the State, drew my attention to a decision of Fatiaki J. in Manu Taunolo v. The State Criminal Appeal No. 65 of 1993 where he said that:
"Despite the provisions of Section 309 of the Criminal Procedure Code that no appeal against conviction lay after a plea of guilty, if after considering the facts and circumstances of a case., the Court
should hold or entertain a reasonable doubt that a plea of guilty was not an intentional and unequivocal admission of guilt or that
the accused was not fully informed or was misinformed as to the substance of the charge, then it would be open to the Court to quash
the conviction based on such a finding."
He continued:
"It is therefore necessary to carefully consider the particular facts and circumstances of the case as revealed in the record
of the proceedings in the Magjstrates’ Court in order to ascertain whether or not the appellant's guilty plea was an unequivocal
one."
There is no hint in his Lordship's reasoning that there should be perhaps a lengthy hearing of evidence from either side to determine
the matter, but only a careful perusal and analysis of the Record of the Magistrates Court.
I respectfully agree with this approach, which was also the one adopted by Lyons J. in Lautoka in Abdul Karam v. The State Crim.App. No.HAAC 0050/94.
After reading the affidavit material outlined above, the learned Magistrate at Nausori, Mr J Singh, found that there had been an unequivocal
plea and admission of the facts read out by the prosecution before him. He refused bail pending appeal which is a factor this Court
can take into account. In effect, put upon inquiry as to his own handling of the plea process, the learned Magistrate was quite satisfied
there had been understanding on the part of the Appellant of the nature and effect of each element of the charge and the detailed
and explicit facts of the offence alleged.
Indeed, the Magistrate's record of proceedings backs him up. The charge is noted as not only "read" but "explained."
There was an explanation process. Then there is recorded in direct speech from the Appellant the English words "I understand
the charge." It is common ground that the Appellant had attained Form 6, and although English may not be his first language,
how would he have had difficulty understanding these matters?
Extrinsic factors arising from a perusal of the affidavits filed on behalf of the Appellant lead one to find that the attack on the
plea of guilty has little credibility:
1. Why when police kept the Appellant in custody overnight on Sunday, 1st February, 1998 contrary to their promises to return him
to his mother, would the Appellant or his mother continue to supinely go along with what police thereafter advised or wanted, without
protest?
2. Why, after the mother, had been let down like that and then saw Const. Satish pulling at the Appellant's shirt to plead guilty
and heard him urge her boy to plead guilty would she make mitigation in the terms she did? viz. "I know my son has committed
a crime." When there was every opportunity to do so, there was no hint of complaint to the Magistrate of police impropriety
which she says she had just seen.
3. On the facts read out there were two eye witnesses, the Appellant's male cousin, Karan Michael Sundar, who saw him lying naked
on top of the child, and an aunty, not the mother of the child, who saw him naked and putting on his clothes, and noticed sperm on
the bed sheet and on the abdomen of the victim. And in what can only have come from the Appellant's own lips in his cautioned interview,
the Appellant had rubbed his erect penis on the buttocks of the victim 10 to 15 times and ejaculated on the bedspread. He then made
the victim roll in that ejaculate as a result of which semen covered her abdomen. Where would the police get this number of times
and the latter detail except from the accused? Yet he says he did not commit the offence!
4. It is only in the Appellant's 8th April Affidavit that mention is made of either police hitting him in the head or of these eye-witnesses
resiling from their versions. Has the appellant decided to improve on his earlier version? Has there been attempted tampering with
these witnesses? No affidavits from them are forthcoming.
5. The Appellant's mother claimed there had been earlier family dispute as a result of which a complaint to police had been made by
her against another family member. This is put in the vaguest way with no identification of the parties to the dispute or its subject-matter.
In any event, who would believe that a mere family dispute would lead to fabrication of eye-witness evidence of so serious a nature
as the present. I do not accept it, for one.
6. How would the Appellant, an 18 year-old boy educated to Form 6 standard, and purporting to commence a course of architectural studies
leading to a surveying career, with possible overseas studies not understand what an indecent assault was all about and whether he
admitted or denied his involvement. I must confess I do not accept that proposition, however immature for an 18-year old he may be.
7. The medical evidence cannot be overlooked which states "Vulval and groin injuries consistent with pinching."
It is also described in another part of the medical report as "superficial ecchymosis consistent with pinching." This means
unequivocally that something had been in touch with the vulva of the child, who was described as 2 years and 10 months old.
8. I have already mentioned the withdrawal of allegations against the police prosecutor which considerably weakens the credibility
of the attack directed at the plea of guilty in this matter.
All in all, I find that the Appellant entered an unequivocal plea of 'Guilty' to the offence of Indecent Assault quite well understanding
the nature and elements of the offence and nature of the allegations of fact made, which were clear and simple and constituted an
overwhelming case against him. When the sentence was heavier than expected, I find the Appellant and his mother turned to allegations
against the police which in the event have availed them naught, in the view I take of the matter.
This does have repercussions for sentence, in that the Appellant cannot claim to be remorseful for a shockingly depraved act on a
small child. The only thing that can be said is that, if it is true, the parents of the child allowed undue intimate access to the
little girl by the pubescent Appellant, allowing him to bath her, dress her and even sleep with her. I have only the Appellant's
word for this, but if it were true, it would be a very imprudent arrangement.
But the Appellant should have controlled his baser urges, and his own mother should have exercised stricter moral surveillance over
him.
The authority cited by Ms Kelly for the State convinces me that this offence is not a fit subject for either a suspended sentence
or a probation order.
Fatiaki J.'s judgment in D.P.P. v. Saviriano Radovu Crim. App.No. 0006 of 1996 related to a man of 42 "fiddling" with the breasts (if any) of an 8 year old girl. He thought
that 9 months immediate imprisonment was appropriate, looking at. the disparity of the ages, and that there was no power to suspend
sentences for this type of offence. I respectfully agree with his reasoning. By parity of reasoning, it is not a fit subject for
probation. It is a grave sexual offence.
It is trite law that the High Court on appeal cannot just at whim substitute for the learned Magistrate's sentence sentence it would
itself have passed. It has to be satisfied the sentence appealed against is manifestly excessive.
The maximum sentence provided for this offence is 5 years imprisonment. The Appellant was sentenced to 18 months' imprisonment. He
was 18 years of age, about to commence architectural studies. The girl was a baby of 2 years and 10 months. He was in a position
of trust vis-à-vis the little girl.
Although saying he didn't really plead guilty at all, the Appellant complains that he didn't get discount for doing so. But I find
the sentencing magistrate did advert to his youth, that he was a first offender and that as he said, the Appellant "had pleaded."
With the best will in the world towards a young first offender as the Appellant is, I cannot but consider the present case a revolting
example of the offence of Indecent Assault. It must be treated as well in the upper range of examples of the offence.
I regret I cannot find the sentence manifestly excessive. The learned sentencing Magistrate did not err in any way in his application of sentencing principles.
In the result, the Appellant's Appeals against his conviction and sentence are both dismissed. I direct the Appellant be taken into custody to resume serving the sentence imposed in the Nausori Magistrates
Court on 2 February, 1998.
K. J. Townsley
JUDGE
22 April, 1998
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