IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA09 of 2016
[Magistrates’ Court Case No.298 of 2009)

BETWEEN

THE STATE

Appellant

AND

KELETO VISAWAQA

Respondent

Coram		:	Hon. Mr Justice Daniel Goundar

Counsel	:	Mr L Fotofili for the Appellant
			Mr A Paka for the Respondent

Date of Hearing	:	16 February 2017
Date of Judgment	:	1 March 2017

JUDGMENT

[1]	This is an appeal by the State against the sentence imposed on the respondent in the Magistrates’ Court at Savusavu for sexual offences committed against three different juvenile girls.  On 17 August 2016, the respondent was sentenced to a total term of 30 months (2 ½ years) imprisonment with 6 months to serve and the remaining 24 months suspended for 3 years. The Petition of Appeal is dated 12 September 2016. The appeal was filed on 19 September 2016. The appeal is late by six days. Clearly, the State had an intention to file a timely appeal as the Petition of Appeal was drafted within time but by the time the document was sent from Suva to Labasa High Court Registry, the appeal was out of time. Counsel for the respondent concedes the appeal on one ground. In these circumstances, I grant an enlargement of time to appeal and consider the substantive appeal.

[2]	The State advances the following grounds of appeal:
(i) That the sentence is unduly lenient insofar as it does not adequately punish the totality of the offending against three young children. 
(ii) That the sentence of 30 months’ imprisonment for the offence of attempted rape of a child is manifestly lenient and wrong in principle. 
(iii) The the Learned Magistrate erred in law by imposing a partially suspended sentence in excess of his powers prescribed by section 26(2)(b) of the Sentencing and Penalties Decree.

[3]	The respondent was charged with two counts of indecent assault and one count of rape. The offences were allegedly committed between 1 November 2009 and 31 December 2009 at Ucunivatu, Cakaudravu against three girls between the age of 8 and 13 years. The respondent first appeared in the Magistrates’ Court on 8 December 2009. He elected to be tried in the Magistrates’ Court. Thereafter, the case was unnecessarily adjourned on numerous occasions until 4 June 2015 when the trial commenced. The evidence was concluded on 5 June 2015 but the judgment convicting the respondent of all three charges was delivered on 28 April 2016. The sentence was delivered on 17 August 2016. The case that should have been concluded within 1 year took 7 years to conclude. The delay was systematic. The Magistrates’ Court did not have an effective control of the proceedings and the three victims of sexual abuse had to wait for 7 years to receive justice. I hope in the future the Magistrates’ Courts are more diligent in concluding cases within a reasonable time especially if they involve vulnerable victims of sexual abuse. 

[4]	At the trial, all three victims gave similar evidence. The first victim, I E was in Year 3 when the incident happened. She said she went to collect shells at Navekaria when the respondent approached her and offered her a coconut to drink. She referred to the respondent as ‘Momo’ – meaning uncle (mother’s brother). While she was sitting down drinking coconut, the respondent rubbed her thigh with his leg. She did not like what the respondent was doing. She stood up and walked away. 

[5]	The second victim was R E. She was also in Year 3 when the incident happened. She said she was returning home from school when the respondent grabbed her from behind, pulled her down and tried to remove her pants. She tried to yell but the respondent covered her mouth with his hand. He tried to lick her vagina but got distracted by sounds of someone cutting the bushes. At that point, she stood up, pulled up her pants and ran away. She referred to the respondent as ‘Tutu’ – meaning grandfather. 

[6]	D E was the third victim. She was the youngest victim. She is the first victim’s younger sister. The incident involving her happened at the same time as the incident involving the first victim. She was with others when the respondent approached them and offered them coconuts for drink. When she was left alone with the respondent, he pushed her down and tried to pull out her skirt. She yelled and when he heard others approaching, he let her go. 

[7]	The three charges were brought under the Penal Code, Cap.17 (now repealed). The indecent assault charges (counts 1 and 2) were based on the incidents involving the first two victims, I E and R E. The attempted rape charge (count 3) was based on the incident involving the third victim, D E. At the appeal hearing, counsel for the State was invited to make submissions on the sufficiency of evidence to sustain the conviction for attempted rape.

[8]	Under the Penal Code, rape was defined as follows:

Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of the felony termed rape.

[9]	Section 380 of the Penal Code defined attempt as follows:

When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.
It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.
It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

[10]	Attempted rape contains two elements that the prosecution must prove beyond a reasonable doubt. The first element is that the accused intended to have sexual intercourse without consent. The second element is that the accused did some overt act to put his intention into execution. 

[11]	In Hari Chand v State Crim. App. 03 of 2005LAB, Shameem J found that where the accused pushed the victim onto a bed, lifted up her dress, pulled down his own trousers and put his hand over her mouth when she struggled, accompanied by a request for sexual intercourse, there was sufficient evidence to prove both the overt acts and the intention to rape. In Epironi Levukaiciwa & Alifereti Tokona v State [2002] HAA 087/01S, an act of lying on top of the victim with the intention of having sexual intercourse was held to be an overt act sufficient to prove an attempt. In Tiare Bobo v The State [1999] HAA 0049/99B, Fatiaki J held that where the accused undressed himself, the only irresistible conclusion to be reached was that he intended to have sexual intercourse with the victim who was struggling. 

[12]	It is clear that the intention of the accused may be inferred from the nature of the overt acts. As Shameen J said in Bulimaiwai v State [2005] FJHC 261; HAA0068J.2005S (2 September 2005):

Often the intent to rape is implied from the nature of the overt act. A touching of the breasts may only constitute an indecent assault. An attempt to take off underclothes together with a touching of the breasts may constitute a sufficient overt act. A great deal depends on the circumstances of each case.

[13]	In the present case, the respondent pushed the victim down and tried to remove her skirt. He stopped when she yelled. The learned Magistrate made no assessment of the evidence before finding the respondent guilty of attempted rape.  If he had assessed the evidence, he would have concluded that while the evidence was sufficient to constitute an indecent assault, the evidence was insufficient to establish an intention to have sexual intercourse. Apart from trying to remove the victim’s skirt, the respondent did not indicate that his only intention was to have sexual intercourse. 

[14]	Counsel for the State concedes that the conviction of attempted rape cannot be sustained having regard to the evidence led at the trial. However, Mr Fotofili  invites this Court to substitute a conviction of a minor offence of indecent assault pursuant to section 256(2) (e) of the Criminal Procedure Decree 2009. 

[15]	Section 256(2) (e) of the Criminal Procedure Decree 2009 allows this Court on appeal to make any order that may seem just by exercising any power which the Magistrates’ Court might have exercised.  Section 160 of the Criminal Procedure Decree 2009 allows the Magistrates’ Court power to convict of a minor offence even though the accused is not charged with it. Indecent assault is a minor offence when compared to attempted rape. It attracts a lesser penalty. The respondent was convicted of indecent assault on the first two counts based on similar fact evidence. A just result can be achieved by quashing the conviction of attempted rape and substituting a conviction of indecent assault on count 3. 

[16]	The State’s appeal will have to be considered on the basis that the respondent was convicted of three counts of indecent assault contrary to section 154(1) of the Penal Code, Cap. 17. The maximum penalty prescribed for this offence is 5 years imprisonment. On each count of indecent assault and attempted rape, the respondent was sentenced to 2 ½ years (30 months) imprisonment, to be served concurrently. The total effective sentence was 2 ½ years’ imprisonment.

[17]	In his sentencing remarks, the learned Magistrate referred to the principles enunciated by Shameen J in Rokota  v The State [2002] FJHC 168; HAA0068J.2002S (23 August 2002) as follows:

From these cases a number of principles emerge. Sentences for indecent assault range from 12 months imprisonment to 4 years. The gravity of the offence will determine the starting point for the sentence. The indecent assault of small children reflects on the gravity of the offence. The nature of the assault, whether it was penetrative, whether gratuitous violence was used, whether weapons or other implements were used and the length of time over which the assaults were perpetrated, all reflect on the gravity of the offence. Mitigating factors might be the previous good character of the accused, honest attempts to effect apology and reparation to the victim, and a prompt plea of guilty which saves the victim the trauma of giving evidence.

These are the general principles which affect sentencing under section 154 of the Penal Code. Generally, the sentence will fall within the tariff, although in particularly serious cases, a five year sentence may be appropriate. A non-custodial sentence will only be appropriate in cases where the ages of the victim and the accused are similar, and the assault of a non-penetrative and fleeting type. Because of the vast differences in different types of indecent assault, it is difficult to refer to any more specific guidelines than these.

[18]	For the offence of indecent assault, the learned Magistrate picked 2 years as a starting point. He then added 12 months for the aggravating factors (serious breach of trust, age gap between the respondent and the victims, the victims were juveniles and mental trauma caused to the victims) and reduced 6 months for the mitigating factors (previous good character, age – 50 years, family circumstances – married with 3 children and remorse – sought forgiveness). After arriving at the final term of 2 ½ years, the learned Magistrate directed his mind to the question of suspension and concluded as follows:

I don’t find any compelling or exceptional circumstance to declare a fully suspend sentence. Therefore, you will serve an immediate prison term of 6 months and the remaining period to be suspended for 3 years.

[19]	Counsel for the State submits that the learned Magistrate lacked power to suspend the sentence because the term exceeded 2 years. Counsel for the respondent concedes the appeal on this ground. 

[20]	Section 26(2) of the Sentencing and Penalties Decree 2009 is clear. It provides:

A court may only make an order suspending a sentence of imprisonment if the period of imprisonment imposed, or the aggregate period of imprisonment where the offender is sentenced in the proceeding for more than one offence,—

(a) does not exceed 3 years in the case of the High Court; or

(b) does not exceed 2 years in the case of the Magistrate’s Court.

[21]	The term of imprisonment in the present case exceeded 2 years. The discretion to suspend either wholly or partially was not available to the learned Magistrate. The suspension was unlawful. Not only the learned Magistrate lacked power to partially suspend the sentence, the suspension was wrong in principle. The victims were children. The gravity of offending should have been based on the tender age of the three victims. When children are sexually abused by an adult family member, the punishment must reflect denunciation and deterrence, both general and special, as the primary purposes of the sentence. In this case, the partial suspension of the sentence defeated the principles of denunciation and deterrence in sentencing. 

[22]	For the reasons given, the State’s appeal is allowed.

Result
[23]	Conviction of attempted rape is quashed and substituted with a conviction of indecent assault contrary to section 154(1) of the Penal Code, Cap. 12.
	The State’s appeal is allowed.
	The suspension order is set aside.
On each count of indecent assault, the respondent is sentenced to 2 ½ years’ imprisonment, to be served concurrently. The respondent has already served 6 months imprisonment. He will now have to serve the remaining 2 years of his sentence. The Court declines to fix a non-parole period due to the systematic delay in concluding the case. 

......................................................
Hon. Mr Justice Daniel Goundar
Solicitors:
Office of the Director of Public Prosecutions for the State
Office of the Legal Aid Commission for the Respondent