Koroitavalena v State [2012] FJCA 64; AAU0051.2010 (11 October 2012)

IN THE COURT OF APPEAL, FIJI ISLANDS
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. AAU0051 OF 2010
[High Court Criminal Action No. HAC104 of 2009]

BETWEEN:

NAIVALURUA KOROITAVALENA
Appellant

AND:

THE STATE
Respondent

Counsel: Appellant in Person
Mr. M. Korovou for Respondent

Date of Hearing: Thursday, 4th October 2012
Date of Ruling: Thursday, 11th October 2012

RULING

1. This is an application for leave to appeal filed by the Appellant against his conviction and sentence.
   
2. The Appellant was charged with five counts of the offence of Incest by Male contrary to section 178(1) of the Penal Code (Cap.17).
   
3. The Appellant pleaded guilty to all five counts before the High Court Judge.
   
4. The Appellant who was 58 years in 2010, married with seven children, aged between 24 and 38 years old, had started abusing the eldest daughter sexually when she was 18 years old and between the 1st of March 1989 to 15th February 2009 repeatedly had sexual intercourse with her well knowing that she was his daughter and who had given birth to four children during that time.
   
5. The High Court convicted the Appellant for each count and he was sentenced to 8 years imprisonment on each count of incest, the sentences on counts 1,2,3 and 4 to run concurrently and the sentence on count 5 to run consecutively to count 4, making up a sentence of 16 years imprisonment with a non-parole period of 11 years imprisonment.
   
6. In imposing the said sentences, the learned High Court Judge considered the aggravating factors and the mitigating factors, and started with a sentence of 7 years imprisonment, added 4 years for the aggravating factors and deducted 3 years for the mitigating factors.
   
7. The grounds of appeal in the application for leave are:
   
   • (a) That there was no DNA evidence to prove the charges against him.
   • (b) The evidence presented against him were all hearsay.
   • (c) The custodial term of 16 years with a minimum term of 11 years to be served prior to being eligible for parole was manifestly harsh and excessive.
     
8. The first two grounds, which in effect are grounds of appeal against his conviction is devoid of merit as the Appellant had pleaded guilty to all five counts of the offence of Incest by Male. The Appellant was represented by Counsel from the legal Aid Commission and had voluntarily pleaded guilty and hence his plea was unequivocal.
   
9. The application for leave to appeal against conviction is refused.
   
10. The application for leave to appeal against sentence merits some consideration.
    
11. Incest is a serious offence, carrying a maximum sentence of 20 years imprisonment. In Richard Ronil Kumar v The State HAC 176 of 2008S (14 May 2010), the accused was charged for committing rape and incest on his sister aged 14 years and 10 months, and when charged on one count of rape and five counts of incest by male, was sentenced to 7 years imprisonment for rape and 6 years imprisonment for each count of incest, the sentences to run concurrently.
    
12. In Babu Ram v The State (2004) FJHC 470 the accused was charged on two counts for committing incest by male on his daughter and was sentenced to 12 years imprisonment on each count, the sentences to run concurrently.
    
13. In The State v Viliame Tamani, High Court of Fiji at Suva – Case No.HAC0007 of 2003S, the accused was charged on two counts for indecent assault, one count of rape and five counts of incest by male of his daughter and was sentenced on counts 1 and 2 to 2 years each, on count 3 for 11 years and on counts 4 to 9, 3 years each, and all the sentences to be served concurrently.
    
14. Since the above cases show a tendency to impose on an accused who is charged on several counts of incest by male to have the sentences to run concurrently, it is my view that imposing the sentence as has been done in the case of the Appellant is excessive regarding the sentence on count 5 to run consecutively with count 4 making up a total of 16 years imprisonment.
    
15. In the above circumstances, I grant leave to the Appellant on his application for leave to appeal against the sentence imposed on him.
    
16. The order of the Court is:
    
    • (1) That the application for leave to appeal against conviction is refused.
    • (2) That the application for leave to appeal against sentence is allowed.
      

Suresh Chandra
Resident Justice of Appeal