Mani v State [2014] FJCA 136; AAU0054.2013 (6 August 2014)

IN THE COURT OF APPEAL
AT SUVA

CRIMINAL APPEAL NO. AAU 0054 OF 2013
(High Court No. HAC 68 of 2013)

BETWEEN:

NARENDRA MANI
Appellant

AND:

THE STATE
Respondent

Coram: Chandra RJA

Counsel: Mr. S. Sharma for the Appellant
Mr. Y. Prasad for the Respondent

Date of Hearing: 23 July 2014
Date of Ruling: 6 August 2014

RULING

1. This is an application for leave to appeal against sentence.
   
2. The Appellant pleaded guilty to two counts of rape contrary to section 207(1) (a) and (3) of the Crimes Decree No.44 of 2009 and was sentenced to 12 years imprisonment with a non-parole period of 10 years.
   
3. The Appellant and the victim, 11 years at the time of the commission of the offence had been living in the same house, and it was when the victim became pregnant and gave birth to a child that it was revealed that she had been raped by the Appellant. The Appellant, 20 years at the time of offending, was a maternal uncle of the victim.
   
4. The grounds of appeal set out in the application for leave to appeal are:
   
   • (1) The learned Trial Judge erred in principle and also failed to take into account the following relevant considerations:
     
     • (i) The Appellant and the victim were made to sleep on the same mattress in the living room whilst the mother of the victim shared the bedroom with her husband;
       
     • (ii) Boy-friend and girl-friend relationship developed as a result of the sharing of the same mattress;
       
     • (iii) Appellant co-operated with the police by admitting the offences.
       
   • (2) The learned Judge did adding additional term of 8 years imprisonment as aggravating features.
     
   • (3) The learned Judge did not take into consideration remand period of 2 months as a separate mitigating factor in reducing the sentence.
     
5. The Appellant to be granted leave has to show that his grounds of appeal come within the provisions of Section 21(1) (c) of the Court of Appeal Act (Cap.12) which is to the effect that he should obtain leave of the Court of Appeal against the sentence unless the sentence is one fixed by law.
   
6. The matters set out in grounds (1),(i) and (ii) attempt to give an impression that the Appellant was put in a position where he would have the possibility of having carnal knowledge of the victim. The Appellant being put into the position of being asked to share the same mattress, and that a boy-friend girlfriend relationship developed as a result was urged as a special circumstance that could have been considered by the trial Judge.
   
7. But the fact that the victim being only 11 years of age and the Appellant standing in a relationship of an uncle to the victim can be a breach of the trust reposed on him specially when the fact of the offending was revealed only after the victim became pregnant and gave birth to a child.
   
8. In those circumstances the two grounds set out in ground (1) would not satisfy the requirements for granting leave.
   
9. As regards ground (1)(iii) the fact that the Appellant cooperated with the Police was a matter that was taken into account in his sentencing judgment and therefore there is no merit in this ground.
   
10. The learned trial Judge commenced his sentencing at a starting point of 12 years which is within the tariff of 10 to 16 years and added 8 years for the aggravating factors which involved the victim becoming pregnant, a baby being born and given up for adoption, denial of her right to attend school, the psychological effect on the child's mind to cope with pregnancy etc. In the circumstances set out in the sentencing judgment the addition of 8 years was justified for the aggravating factors.
    
11. While adding 8 years for the aggravating factors, the learned judge gave a discount of 8 years for the mitigating factors as well which was favourable to the Appellant and arrived at the sentence of 12 years imprisonment with a non-parole period of 10 years. This is in keeping with the decision of the Court of Appeal in Anand Abhay Raj v. State AAU 0038 of 2010 where it was stated that rapes of juveniles (under the age of 18) must attract a sentence of at least 10 years and the accepted range of sentence is between 10 and 16 years.
    
12. The only factor that had not been spelt out in the sentencing judgment is the discount for the period in remand which has to be discounted when sentencing.
    
13. In dealing with the discounts that were given the learned trial judge deducted two years for his mitigation of family hardship, remorse and clear record and deducted six years for early guilty plea.
    
14. As no discount had been given for the period in remand that remains the only ground on which leave to appeal can be granted and leave is granted accordingly.
    

Order of Court
Leave to appeal is granted on ground 1(c).

Hon. Justice S. Chandra
Resident Justice of Appeal