IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 018 OF 2003

BETWEEN:

STATE
APPELLANT

-vs-

PC 1984 UTESH CHANDRA
PC 2655 YOGESH PRASAD
PC 2623 RITESH PRASAD
RESPONDENTS

Mr. R Singh for the Appellant
Mr. D. Sharma for the Respondents

JUDGMENT

This is an appeal by the Director of Public Prosecutions against sentence. The Respondents were charged on the 14th of November 2002 as follows:

Statement of Offence (a)

INDECENT ASSAULT ON FEMALE: - Contrary to Section 154 of Penal Code, Cap 17.

Particulars of Offence (b)

PC 1984 UTESH CHANDRA, PC 2655 YOGESH PRASAD and PC 2623 RITESH PRASAD, on the 21st day of December, 1999, in Suva in the Central Division, unlawfully and indecently assaulted WSC 99 PRATIBHA KIRAN d/o Daya Ram.

The history.

All three Respondents pleaded not guilty. Before the trial commenced there were some submissions made to the learned Magistrate, that the complainant wished to withdraw her complaint, and that the prosecution was an abuse of the process because the charge related to an event in December 1999. The prosecution responded that the DPP had decided to proceed despite the complainant’s reluctance and that the delay in the laying of charges was caused by the failure of the police to forward the file to the DPP’s office before 11th November 2002. The learned Magistrate ruled that the matter should proceed in the public interest.

The trial commenced on the 8th of January 2003. The evidence led revealed that the complainant was a Special Constable who had joined the Police force in 1998. Her duties were to take care of the switchboard and to do orderly duties. On the 21st of December 1999, after 11pm she was sitting at the switchboard when the three Respondents came in smelling of alcohol. The 1st Respondent touched her back, the 2nd Respondent her breast and the third her face. The record reads:

“I wanted to run away but the call was coming and I had to answer the calls. I did not like the way these officers touched me and I was frightened too. I felt angry, frustrated, very annoyed and felt dirty. I tried to leave the room. I wanted to leave but was pushed by Utesh. I took up a sasa broom and Utesh tried to protect himself by lifting switchboard. I finally managed to see Woman Constable Laisani and called her. She came into the operator’s room and I ran outside.

She complained to WPC Asinate at the tap and then to Corporal Paulini in the change room. The next morning she complained at the Nabua Police Station.

Under cross-examination, the complainant agreed that she tried to retract her complaint because of the delay involved in the processing of it. She agreed that she get on well with the Respondents and often joked with her but that they had never touched her like that before. It was never suggested to her in cross-examination that she lied about the incident, or that it did not occur.

Another woman police officer gave evidence that she saw three boys “playing with” the complainant. Another woman police officer saw the complainant hit the 1st Respondent with a sasa broom, after he pulled her hair. WPC Asinate gave evidence that the complainant was distressed after the incident and that she complained to her. Sgt Paulini Lotawa gave evidence that the complainant was distressed and complained about the assault on her by the Respondents. The complaint was consistent with the complainant’s evidence in court. She said that the Respondents told her they were only joking.

Under caution the three Respondents denied the incident completely saying either that they did not see the complainant in the switchboard room or that she was there but that there was no conversation with her at all.

In the defence case, the 1st Respondent chose to give sworn evidence saying that he had only touched her shoulder to tell her to stay behind to do the next shift. He said he never touched her but that she hit him with a sasa broom.

The 2nd Respondent gave sworn evidence and said he had only stood at the door of the switchboard rooms and had said hello to the complainant. The 3rd Respondent said he had not entered the room at all.

Judgment was delivered on the 21st of January 2003, finding all three Respondents guilty. The mitigation was that the Respondents had suffered because the charge had been hanging over their heads for 3 years, that they had been interdicted since the charge had been laid in November 2002, that they faced disciplinary action under the Police Act, that they were first offenders and had been maligned in the media, that they were married and were breadwinners and that convictions should not be entered against them.

In sentencing the Respondents, the learned Magistrate took into account the delay in the laying of charges, the fact that the complainant was on good terms with the Respondents and that the incident occurred around Christmas time. She warned all three Respondents to desist from such conduct in the future and said that they appeared remorseful. She then decided not to enter a conviction against the Respondents. She went on to say: “Further, given the circumstances of the case pursuant to Section 169 of the Criminal Procedure Code I reduce the charge to Section 154 (4) of the Penal code. Persuasive mitigation by counsel has convinced the court to allow the three gentlemen another change and to discharge their matter pursuant to Section 44 of the Penal code. However as a further deterrent along with the stern warning given already they are each charged court costs of $200 each to pay today”.

The appeal.

The grounds of appeal are that the sentence imposed was wrong in principle and manifestly lenient in all the circumstances of the case.

At the learning of the appeal, it was agreed by both counsels that having found the Respondents guilty of indecent assault under Section 154 (1) of the Penal Code it was not open to her to substitute another offence during sentence. Section 154 (1) provides:

“Any person who unlawfully and indecently assaults any woman or girl is guilty of a felony, and is liable to imprisonment for five years; with or without corporal punishment”.

Section 154 (4) provides;

“Whoever intending to insult the modesty of any woman or girl, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman or girl or whoever intrudes upon the privacy of a woman or girl by doing an act of a nature likely to offend her modesty, is guilty of a misdemeanour, and is liable to imprisonment for one year”.

Section 169 of the Criminal Procedure Code provides:

“(1)	When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.

(2)	When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it”.

This provision only applies when the court finds that some of the elements of the offence are not proved. Clearly, this was not such a case. There was clear evidence of an assault by the three Respondents, both individually and jointly, and of indecency and unlawfulness. The learned Magistrate made a finding that she was satisfied beyond reasonable doubt of the Respondents guilt on the charge of indecent assault. It was not open to her to later substitute a conviction for another offence.

Further, I doubt that Section 154 (4) is a lesser offence in relation to Section 154 (1). Section 154 (4) requires proof of the intrusion of the privacy of a woman and of the likelihood that her modesty will be offended. These are not elements of the offence of indecent assault. Lastly, she purported to reduce the charge at the stage of sentencing. At that stage, neither prosecution nor defence could respond to the substituted charge. Section 169 (1) and (2) apply at the time of conviction (or of the finding of guilt) not at the time of sentence. The sooner the possibility of a lesser offence can be raised, the better because of the resulting prejudice to the accused. In R v Harris, The Times March 22, 1993 the English Court of Appeal quashed a conviction for attempt when the alternative charge of attempt was raised for the first time after the close of the defence case, on the ground that the defence would have been conducted differently if the alternative had been raised. The defendant was therefore prejudiced in his defence.

Thus in this case I find that the learned Magistrate had no powers to reduce the charge when she had already found the substantive offence proven beyond reasonable doubt. It follows that her finding of guilt under Section 154 (4) of the Penal Code is wrong in law and must be quashed. The sentence is also quashed because she was sentencing for an offence under Section 154 (4) for which the statutory maximum is only one year, and in respect of which there was no finding of guilt.

The absolute discharge.

The learned Magistrate considered that this was an appropriate case for an absolute discharge on the ground that the Respondents were remorseful and had reconciled with the victim.

It has been said on many occasions in Fiji and in other jurisdictions, that the absolute discharge should be reserved for those cases where the offender was not morally blameworthy or where there was a mere technical breach of the law. There can be no dispute that this case falls into neither category. In State v Nand Kumar Criminal App No. HAA0014 of 2000 L, Gates J considered an appeal in respect of an absolute discharge for the offence of common assault. At page 9 he said:

“The court, in its sentencing remarks, said rightly, it was faced with “a very awkward situation” for this accused was facing dismissal from his employment if a conviction were to be entered. Nevertheless, a discharge without conviction being entered, was not an appropriate sentence here. Absolute discharges are appropriate only in a limited number of circumstances, such as where no moral blame attaches (R v O’Toole (1971) 55 Cr App p 206) or where a mere technical breach of the law has occurred, perhaps by imprudence without dishonesty (R v Kavanagh (unreported) May 16th 1972 CA)”

In Carol Mitchell Tabutt v The Commissioner of Inland Revenue Criminal Appeal No. 108 of 1998S, the appellant was found guilty of offences under the Income Tax Act. She was discharged without conviction under Section 44 of the Penal Code. The Commissioner appealed against sentence and the High Court set aside the discharge and entered a conviction imposing fines. On appeal to the Court of Appeal, the Court held that the appellant herself was responsible for her offending and that an absolute discharge on the facts was not appropriate. It cited with approval Scott J’s remarks in Commissioner of Inland Revenue v Atunaisa Bani Druavesi (Criminal Appeal No. HAA0012 of 1997 which were as follows:

“Perhaps it is time to re-emphasize that the powers conferred by Section 44 (1) of the Penal Code should only be exercised sparingly (see Halligan v Police (1955) NZCR 1185) where the direct or indirect consequences of convictions are out of all preparation to the gravity of the offence and after the Court has balanced all public interest considerations as they apply in the particular case (see Tipple v Police (1994) 2 NZLR 362)”

In Fiji, sentences for indecent assault range from 1 year to 4 years imprisonment. Sentences at the higher end of the tariff have been imposed for the indecent assault of children. An excellent review of sentences passed for offences of indecent assault can be found in Ratu Veretariki Kadavu v The State Criminal Appeal No. HAA0049 of 2000L. The indecent assault of adults is generally considered less serious, but a betrayal of trust, or the exploitation of a relationship of authority and seniority would be aggravating factors. The type of assault involved is also relevant. A penetrative assault, or the use of weapons or substances would normally attract a higher sentence than, for instance, a forced kiss or the fondling of breasts. However, in my perusal of cases of indecent assault in Fiji, a non-custodial sentence is rare. In Iqbal Koya v The State Criminal Appeal No. 0048 of 1999, Fatiaki J imposed a 9 month term on a court of indecently annoying female contrary to Section 154 (4) of the Penal Code in a case of a man exposing his genitals to a woman. In Asaeli Tamanitoakula v The State Criminal Appeal No. HAA0003 of 2001, Surman J reduced a 2 ½ year term of imprisonment to 9 months imprisonment where the victim was a nine year old girl who had been indecently assaulted by the touching of her vagina. In DPP v Saviriano Radovu Criminal Appeal No. HAA0006 of 1996, Fatiaki J imposed a 9 month sentence for an accused who indecently assaulted a 9 year old child by fondling her breasts. In Arun Kumar v State Criminal Appeal No. HAA0003 of 1995 the Labasa High Court reduced a 9 months term of imprisonment to one of 3 months for a man who kissed an adult woman by force.

I was unable to find any local decisions on sexual assault in the workplace. However, in Gurinder Singh –Marwa (1995) 16 Criminal Appeal R (S) the English court of Appeal considered a sentence of 21 months imprisonment imposed on appellant who pleaded guilty to the indecent assault of an 18 year old woman who had applied for a job in the appellant’s business. The appellant had interviewed her, then taken her into a locked room, pulled her shirt up and fondled her breasts. The sentence was reduced to 15 months imprisonment but the Court found that the sentencer was right to conclude that the offence was so serious that only a custodial sentence could be justified. The victim was anxious to obtain employment and therefore vulnerable.

In Andrew McDonald Drysdale (1993) 14 Criminal Appeal R (S) a male nurse placed his finger in the vagina of a student nurse whilst showing her how to deal with a patient. A sentence of 6 months imprisonment was upheld for the charge of indecent assault.

Although the statutory maximum for indecent assault in England and Wales is now 10 years imprisonment, these cases make clear that where indecent assaults take place in a work environment and where there may be some degree of economic superiority over the victim, custodial sentences are inevitable.

As a starting point therefore, given the nature of the offending, I choose 9 months imprisonment. The aggravating factors are that the victim was a colleague of the Respondents and deserved to be treated with respect and dignity, that this was a case of an indecent assault in the workplace and that the consequences of the assault must have been far-reaching for the victim, the fact that the three Respondents acted in concert to assault a woman knowing she could not defend herself against three men, and the nature of the assault which included fondling of the breast.

Mitigating factors are the previous good character of the Respondents, the fact that they have been suspended from duties from November 2002 without pay, the fact that despite the incident they are on good terms with the victim their family circumstances and the delay in filing the charge.

Taking all these matters into account, I arrive at a sentence of 4 months imprisonment.

Should this sentence be suspended? A suspended sentence should only be imposed in the most exceptional circumstances and only when there are considerations which persuade the court that an immediate custodial sentence would be unjust. In this case, I do so consider. The offence was committed in December 1999, 3 ½ years ago. The victim, frustrated with the delay, lost interest in the case. Although I see no evidence of remorse on the court record, there has been some degree of reconciliation. I do not know what price (if any) the victim paid for reporting on her own colleagues within the Police Force, but her courage and resilience have obviously assisted her in maintaining cordial relationships with the Respondents.

In all the circumstances, and particularly because of the delay, I suspend the term of imprisonment for 12 months for each Respondent.

I was advised by counsel that the entering of convictions in this case would probably lead to disciplinary action by the Police Force and may lead to the dismissal of the Respondents. However, I am not persuaded to enter a discharge without conviction. Firstly, I can find no comparable case which led to a discharge. Secondly although I am aware that the Respondents should not be given a sentence which would exceed the gravity of the offence, I consider that the courts need to send a message to the community that police officers who commit criminal offences will not be subjected to different rules from the rest of the community. Thirdly, this is a case of an indecent assault by three men acting jointly on a colleague in the workplace. It is not a case in respect of which an absolute discharge is appropriate. Women in the workplace are entitled to be treated with dignity and not discriminated against on the ground of their gender. A custodial sentence, and the entering of convictions are appropriate in the circumstances. Indeed, if it were not for the delay, I would not be minded to suspend the sentence.

Result

This appeal succeeds on both grounds. A conviction is entered for each Respondent for the charge of indecent assault contrary to Section 154 (1) of the Penal Code. Each Respondent is sentenced to 4 months imprisonment suspended for 12 months. Each is warned in terms of Section 29 (4) of the Penal Code. The costs order remains.

N. Shameem
JUDGE