IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0013 OF 2003S

Between:

SIRELI RATUBALAVU
Appellant

And:

THE STATE
Respondent

Hearing: 1st April 2003
Judgment: 4th April 2003

Counsel: Appellant in Person
Mr N. Lajendra for State

JUDGMENT

On 6th March 2002, the Appellant was sentenced to a total of 4 years imprisonment on the following counts:

FIRST COUNT

Statement of Offence

INDECENT ASSAULT: Contrary to Section 154(1) of the Penal Code Act 17.

Particulars of Offence

SIRELI RATUBALAVU, between 1998 and the 27th day of May 2001, at Navua in the Central Division, unlawfully and indecently assaulted a girl namely SUZANNE MORREL.

SECOND COUNT

Statement of Offence

INDECENTLY ANNOYING FEMALE: Contrary to Section 154(4) of the Penal Code, Act 17.

Particulars of Offence

SIRELI RATUBALAVU, between 1998 and 27th day of May 2001, at Navua in the Central Division, with intent to insult the modesty of a woman namely SUZANNE MORRELL, uttered insulting words at the said SUZANNE MORRELL.

He appealed against this sentence on 6th June 2002. He was two months out of time. The learned Magistrate noted on the court file: “Appeal is well out of time. Appeal refused. Appeal time of 28 days is always properly explained to them in Court.”

The Appellant now appeals against the refusal, saying that he was not told he had 28 days to appeal, that he was only 2 months out of time and that his appeal was bound to succeed because the total sentence he received was harsh and excessive.

State counsel agreed that the appeal was meritorious and said that he conceded the appeal because the sentence was clearly harsh for a fleeting type of indecent assault. Further, he said that the two counts were so closely linked factually, that consecutive sentences were wrong in principle.

The facts outlined by the prosecutor, on the Appellant’s guilty plea, were that the victim, who is the Appellant’s stepdaughter was asleep, at sometime between 1998 and 2001, when the Appellant entered her room and touched her legs. The prosecutor did not elaborate on the form of touching. On 27th May 2001 the Appellant told the victim he wanted to have sexual intercourse with her. She became annoyed, ran away, and met one Jagdish Narayan who saw the victim crying. She told him the story and the matter was reported to the police. The Appellant admitted these facts and also agreed to 11 previous convictions, which include common assault and assault occasion actual bodily harm.

In mitigation the Appellant said he had reconciled with the victim and his wife, that he is the sole breadwinner in the family and that they have 3 children all at school. The learned Magistrate said he had considered the plea of guilty, the mitigation and the reconciliation. He said the offence was prevalent and that the Appellant had betrayed his step-daughter’s trust. He was sentenced to 3 years imprisonment on Count 1, and 12 months imprisonment on Count 2, to be served consecutively. In computing this sentence, the learned Magistrate said he had taken into account the remission given by the prison authorities.

There are difficulties with the conviction on Count 1. The facts outlined do not specify the nature of the “assault.” Nor do we know the age of the victim. On a charge of indecent assault, the prosecution must show that the act complained of was inherently indecent or was done in circumstances of indecency. The touching of the victim’s legs together with the request for sexual intercourse certainly constitute an indecent assault. However, the request for sexual intercourse was the subject of a separate charge with a specific date. The indecent assault charge is alleged to have taken place on a date within a 3 year time frame. The court record does not disclose a factual link between the touching of the legs and the request for sexual intercourse.

In the circumstances, although this was an appeal against sentence, I find that the facts could not have sustained a conviction for indecent assault. In my revisional jurisdiction, I quash the Appellant’s conviction on Count 1.

On Count 2, the request for sexual intercourse to an unwilling victim, did constitute an offence under section 154(4) of the Penal Code. The maximum sentence under that section is imprisonment for one year. Although the request was insulting especially as it was directed at the Appellant’s stepdaughter, I see no reason why the statutory maximum was imposed. A shorter sentence would have adequately reflected the betrayal of trust, and the disapproval of the community towards the act of the Appellant. Further, because the court record does not indicate the age of the victim (I see that she is described as a “girl” on Count 1 and as a “woman” on Count 2) there is no available information about the special vulnerability of the victim.

In all the circumstances, a starting point of 6 months imprisonment, with a reduction for the plea of guilty and other mitigation, and an increase of the seriousness of the offending, would have resulted in a final sentence of 9 months imprisonment. The question of compulsory remission should not be considered by the sentencer.

Conclusion

The appeal against the refusal of the Magistrates’ Court to grant enlargement of time to appeal is allowed. In the revisional jurisdiction of the High Court, the conviction and sentence on Count 1 are quashed. The appeal against sentence on Count 2 is allowed. The sentence is reduced to 9 months imprisonment to run from the 6th of March 2002. Since this sentence has already been served, the Appellant is to be released forthwith.

Nazhat Shameem
JUDGE

At Suva
4th April 2003