IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM0068 of 2005S

Between:

THE STATE
Applicant

And:

PA’U SORPAPELU
Respondent

Hearing: 21st October 2005
Ruling: 27th October 2005

Counsel: Mr. D. Gounder for State
Mr. R. Nayacalevu for Respondent

RULING

This is an application for leave to appeal out of time. On the 17th of June 2005 the Respondent was convicted, on his plea of guilty to one count of indecent assault contrary to section 154(1) of the Penal Code. On the 14th of November 2004 he sucked the breast of a 16 year old girl, as she lay sleeping in his house. She is his niece. The learned Magistrate considered the case to be one, not of indecent assault, but of indecently insulting or annoying a female, under section 154(4) of the Penal Code. The maximum penalty for a section 154(4) offence is 12 months imprisonment. It is therefore a minor offence in relation to indecent assault, which carries a maximum penalty of 5 years imprisonment.

The learned Magistrate did not convict the Respondent, but found the case to be a lesser offence under section 169(2) of the Criminal Procedure Code, and conditionally discharged him saying that he “shall not add more salt to the already mentally wounded person.” He also found that the Respondent had performed a traditional apology to the victim’s family.

The State now wishes to appeal against this section. It filed an application, by motion and affidavit, on the 7th of October 2005. The appeal is 2½ months out of time. The affidavit of Paulini Madanavosa, State counsel states that the reason for the delay is that the State was represented by a police prosecutor in the lower court, the DPP’s Office was not aware of the proceedings until the docket arrived at the Office on the 4th of October 2005 after the victim’s mother made representations to the Office.

Counsel at the hearing of this application submitted that the appeal was meritorious, because the learned Magistrate had failed to consider the effects of the offence on the victim who is a child, had in error reduced the charge when the facts did in fact disclose an indecent assault and had in error considered traditional apology as mitigation when the victim’s family had never accepted such reconciliation. He said that there were important issues to be decided on appeal.

Counsel for the Respondent vigorously opposed the application, saying that the reasons given by the State for the late filing were unacceptable, that the DPP’s Office was harassing the Respondent and that there were no merits in the appeal.

The principles relevant to this application are the cogency of the reasons advanced for delay, the length of the delay itself, and any merits in the appeal.

In this case the delay is not excessive. The Respondent has been given a conditional discharge for 12 months and only 2½ months of it had lapsed when this application was filed. The reason given for the delay is that the DPP’s Office had no knowledge of the sentence imposed until the 4th of October 2005. This application was made on the 7th, and accepted for filing on the 11th of October. The reason given for the delay is acceptable.

Lastly, the State has persuaded me that the appeal is meritorious. It is irregular to reduce the charge at the sentencing stage. If the facts disclose a lesser offence, the presiding Magistrate must bring this to the attention of both parties, and inform them that he/she is considering convicting or finding the accused guilty, of a lesser charge. It is far too late to convict of a lesser charge while sentencing.

Without the court record, it is impossible to say whether the facts failed to disclose an indecent assault. Prima facie however, the sucking of a girl’s breast as she lay sleeping (if those were indeed the facts outlined) does constitute an indecent assault. However, the point must be fully argued on appeal.

The appeal therefore appears to have merit. Further, the State also has arguable grounds of appeal on the weight placed on reconciliation, and the failure to consider the impact of the offence on the victim.

In the circumstances I am satisfied that leave should be granted for enlargement of time. Leave is granted.

Nazhat Shameem
JUDGE

At Suva
27th October 2005