High Court of Fiji

18. This ground of appeal is dismissed due to lack of merits.
    

GROUND TWO

That the learned trial Magistrate erred in law and in fact when he failed to believe the testimonies of the defence witnesses who told the court in no uncertain terms that the accused was with them at the time of the alleged offence and not where alleged by the complainant.

19. The counsel for the appellant submits that the appellant had denied the allegation and his evidence was supported by his mother (PW2) who had informed the court that she was sleeping with the complainant and that the allegations against her son (the appellant) was false. Furthermore, the evidence of the wife of the appellant (DW3) was that she was escorted to the washroom in the early hours of the morning of the incident by the appellant and then they came back and slept. DW4 and DW5 had also informed the court that the appellant was drinking grog with them till 2 am the time of the incident.
    

20. Counsel states the evidence given by all the defence witnesses were forthright but the learned Magistrate did not believe them.

21. The finding of credibility and reliability of a witness is upon the person who sees the demeanour of the witnesses and hears the evidence. In the instant case it was the learned Magistrate who had seen the witnesses and heard the evidence of both the prosecution and defence witnesses. In cases of sexual nature as in this case there is no requirement in law for the complainant’s evidence to be corroborated by independent evidence. Section 129 of the Criminal Procedure Act reads:

“Where any person is tried for an offence of a sexual nature, no corroboration of the complainant’s evidence shall be necessary for that person to be convicted; and in any such case the judge or magistrate shall not be required to give any warning to the assessors relating to the absence of corroboration.”

22. The learned Magistrate on the totality of the evidence adduced in court found the complainant to be credible and reliable despite the lengthy cross examination. At paragraph 16 of the judgment the learned Magistrate had observed.

“The complainant was cross examined at length and she maintained her consistency and didn’t waiver and remained firm as to the allegation. I find that she was not discredited.”

23. At paragraphs 21 and 22 the learned Magistrate did take into account the defence case and also considered the defence evidence in detail. After analyzing all the evidence in its entirety the learned Magistrate preferred the evidence of the complainant over that of the defence. At paragraph 26 the learned Magistrate stated:
    

“On the evidence I find the complainant’s evidence to be more credible, reliable and worthy of belief. On the evidence I find no reason for her to be making up this allegation against the accused.”

24. The learned Magistrate had exercised his discretion in deciding the credibility and reliability of the witnesses on the evidence adduced, it was open to the learned Magistrate to exercise his discretion in favour of the complainant which he did. The learned Magistrate in his judgment gave his reasons for not believing the accused at paragraph 23 of the judgment.
    
25. There is no error shown by the appellant in the exercise of this discretion by the learned Magistrate.
    
26. The fact that the defence witnesses told the court that the accused had not left them at the time as alleged by the complainant and maintained their version did not mean that when assessing the evidence the learned Magistrate was satisfied of its truth.
27. The learned Magistrate did not fall in error when he made a finding of credibility which he was entitled to do since he was able to see the witnesses give evidence and note their demeanour in court.

28. In Ajendra Kumar Singh vs. R (1980) 26 FLR 1 the Court of Appeal said at page 9:

"...It is also set out in [Director of Public Prosecutions- v- Ping Lin [1975] 3 All ER 175] as has frequently been said that an appellate Court should not disturb a judge's findings unless it is satisfied that a completely wrong assessment of the evidence has been made, or the correct principles have not been applied".

29. After perusing the evidence contained in the copy record this court is satisfied that the learned Magistrate had correctly assessed the evidence for the prosecution and the defence in deciding the credibility of the witnesses. There is no compelling reason why this court should interfere with the fact finder’s decision in this regard.
30. In view of the above this court is unable to interfere with the learned Magistrate’s finding of credibility.
    

31. This ground of appeal is also dismissed due to lack of merits.

GROUND THREE

The learned trial Magistrate erred in law and in fact in not finding the accused evidence credible but did not give reasons for his findings.

GROUND FOUR

That the learned trial Magistrate erred in law and in fact when he found the evidence of the accused unreliable but did not give reasons for his findings.

32. In furtherance of both grounds of appeal the learned counsel for the appellant submits that the learned Magistrate at paragraph 25 of the judgment did not elaborate or give reasons why he found the evidence of the appellant not credible and unreliable and also that the defence had not created any doubt on the prosecution case.
    
33. Counsel relies on the case of Mano Datt Sharma v R [1969] 15 FLR 136 where Thompson J. had commented on the need for transparency and accuracy of process in judgments at page 139 as:
    

“In so far as the judgment indicates, the learned Magistrate’s process of thought in considering the evidence adduced there was nothing to show that he took the defence case and the evidence in support of it into consideration at all (and later) ... in this case there may well have been good reasons for rejecting the evidence of the accused and of the witness called on his behalf. But there is nothing in the judgment to indicate that, that evidence was taken into account at all... it is not simply a matter of implicitly rejecting evidence of an apparently far-fetched story told by the accused (or his witnesses)...”

34. The case of Mano Datt Sharma (supra) is distinguished from the current case because here the learned Magistrate had properly and correctly taken into account the defence case. In Sharma’s case (supra) the learned Magistrate had omitted to take into account the defence case. Here the learned Magistrate had outlined in detail the defence case at paragraphs 21 and 22 of the judgment followed by his reasons at paragraphs 23 and 24 of the judgment.
    
35. The learned Magistrate came to his conclusion at paragraph 26 of the judgment after taking into account the defence case.
    
36. There is no error by the learned Magistrate these grounds of appeal are also dismissed due to lack of merits.
    

APPEAL AGAINST SENTENCE

GROUND FIVE

The learned trial Magistrate erred in law and in fact in sentencing the Appellant to a term of 2 ½ years imprisonment which is harsh and excessive in all the circumstances.

GROUND SIX

The learned trial Magistrate erred in law and in fact when he did not consider a suspended sentence to be more appropriate than an immediate custodial sentence.

37. The counsel for the appellant submits that the sentence was harsh and excessive and that a suspended sentence was justified considering the fact that there was no evidence of violence, use of weapons, repeated rape, pre-planning, no previous convictions of the appellant, the victim was not subjected to further sexual indulgences and there was no evidence of any trauma suffered by the victim.

LAW

38. In sentencing an offender the sentencing court exercises a judicial discretion. An appellant who challenges this discretion must demonstrate to the appellate court that the sentencing court fell in error whilst exercising its sentencing discretion.
    
39. The Supreme Court of Fiji in Simeli Bili Naisua vs. The State, Criminal Appeal No. CAV0010 of 2013 (20 November 2013) stated the grounds for appeal against sentence at paragraph 19 as:-
    

“It is clear that the Court of Appeal will approach an appeal against sentence using the principles set out in House v The King [1936] HCA 40; (1936) 55 CLR 499 and adopted in Kim Nam Bae v The State Criminal Appeal No. AAU0015 at [2]. Appellate Courts will interfere with a sentence if it is demonstrated that the trial judge made one of the following errors:-

(i) Acted upon a wrong principle;

(ii) Allowed extraneous or irrelevant matters to guide or affect him;

(iii) Mistook the facts;

(iv) Failed to take into account some relevant consideration.”

40. From the above grounds of appeal the appellant’s contention is that the sentence is wrong in principle which has resulted in a harsh and excessive sentence. The appellant seeks a wholly suspended sentence.
    
41. The tariff for attempted rape ranges from 12 months imprisonment to 5 years imprisonment. The maximum punishment for attempted rape is 10 years imprisonment. At paragraph 5 of the sentence the learned Magistrate had correctly taken the above into consideration as follows:
    

“The maximum penalty for attempted rape is 10 years imprisonment. In the case of Joji Aunima v State, Criminal Appeal No. HAA 033 of 2001; Madam Justice Shameem ... stated at page 4 paragraph 5 that the accepted tariff for attempted rape in Fiji ranges from 12 months imprisonment to 5 years imprisonment. The starting point would depend on the seriousness of the offending.”

42. The learned Magistrate selected a starting point of 2 years imprisonment which was at the lower range of the tariff. For the aggravating factors the sentence was increased by 2 years bringing the interim total to 4 years imprisonment.
    
43. For the mitigating factors and the appellant being a first offender a reduction of 1 ½ years was allowed. The final sentence was 2 ½ years imprisonment with a non-parole period of 1 ½ years imprisonment.
    
44. There is no error shown by the appellant in the exercise of the sentencing discretion by the learned Magistrate. This court notes that there is a degree of planning involved, however, the appellant is lucky that this factor was not taken into consideration by the learned Magistrate to enhance the sentence.
    
45. The circumstances in which this offence was committed is serious the facts do suggest a well-planned act by the appellant during the early hours of the morning when the other members of the household were sleeping. The act of forcefully taking the complainant to the kitchen which was located outside the main house does speak volumes of the circumstances of the offending.
    
46. The sentence properly reflects the criminality of the appellant which meets the sentencing guidelines of the Sentencing and Penalties Act. Any reduction of the sentence imposed would fail to deter offenders or other persons from committing offences of the same or similar nature and will also fail to signify that the court and the community denounce the commission of such offences.
    
47. The learned Magistrate was correct in not suspending the sentence since under section 26 (2) (b) of the Sentencing and Penalties Act the Magistrate’s Court cannot suspend a sentence of imprisonment over 2 years.
    
48. The above grounds of appeal are also dismissed due to lack of merits.

ORDERS

1. The appeal against conviction and sentence is dismissed.

2. 30 days to appeal to the Court of Appeal.

Sunil Sharma
Judge

Solicitors

Messrs. Jiten Reddy Lawyers, Suva for the Appellant.

Office of the Director of Public Prosecutions for the Respondent.