Mataunitoga v State [2014] FJCA 150; AAU0125.2013 (19 September 2014)

IN THE COURT OF APPEAL
[On Appeal from the High Court]

Criminal Appeal No. AAU0125 of 2013
[High Court Case No. HAC 126 of 2013L]

BETWEEN:

PAULIASI MATAUNITOGA
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA

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

Date of Hearing : 12 August 2014
Date of Ruling : 19 September 2014

RULING

[1] This is an application for leave to appeal against sentence pursuant to section 21(1)(c) of the Court of Appeal Act. The appellant was charged with a representative count of rape and a representative count of indecent assault. The victim was his 19-year old biological daughter. The appellant was convicted after he pleaded guilty to the charges in the High Court at Suva. On 25 November 2013, he was sentenced to 16 years' imprisonment for rape and 4 years' imprisonment for indecent assault, to be served concurrently. A further order was made that the appellant serve 15 years' before eligible for parole. On 19 December 2013, the appellant lodged a timely notice for leave to appeal against his sentence.

[2] To succeed with this application for leave, the appellant must demonstrate that he has an arguable ground to disturb the sentencing discretion of the learned High Court judge. Appellate courts review the sentencing discretion by considering whether the court below:

(i) acted upon a wrong principle

(ii) mistook the facts

(iii) failed to take into account some relevant considerations

(iv) took into account irrelevant considerations (Simeli Naisua v The State unreported Criminal Appeal No. CAV0010 of 2013 (20 November 2013).

[3] The ground of appeal advanced by the appellant is:

"The Learned Trial Judge erred in principle and also failed to take into account the following relevant considerations:

1. Commenced sentencing at a high starting point of imprisonment;
   
2. The aggravating factors have been taken twice, once in the high starting point and then separately;
   

c) Early guilty plea not considered as a separate factor in reducing the sentence;

4. Remand period of 1 year 8 months and 9 days was not considered separately in reducing the sentence."
   

[4] The use or the selection of a starting point does not involve any principle. In sentencing an offender, a starting point is used as a guide to arrive at a sentence that fits the crime. As a matter of practice, the starting point is picked on an objective seriousness of the offence without any regard to the mitigating and aggravating factors. If there is an established tariff for an offence, then generally the starting point should be picked from the lower end of the tariff and then the sentence should be adjusted to reflect the aggravating and mitigating factors.

[5] In the present case, the learned trial judge used rape as his head sentence. After picking 15 years for rape, he added 4 years to reflect the aggravating factors and deducted 3 years to reflect the mitigating factors to arrive at a final sentence of 16 years' imprisonment. For the offence of indecent assault a starting point of 3 years was used and after adjusting for the mitigating and aggravating factors, a sentence of 4 years' imprisonment was imposed.

[6] The second ground of appeal contends that the use of a higher starting point arguably incorporates the aggravating factors and by adding another 4 years the appellant was virtually punished twice based on the same facts.

[7] The third ground contends that insufficient weight was given to the appellant's guilty plea. Counsel for the appellant submits that in sexual cases allowance or reduction for guilty pleas are made for relieving the victims from giving evidence which can lead to further trauma for them. Mr. Sharma also refers to the case of Mitieli Naikelikelivesi v State unreported Criminal Appeal No. AAU0061 of 2008 (23 June 2009) where the Court of Appeal at paragraph 22 stated:

"Where there is a guilty plea this should be discounted for separately from the mitigating factor in a case."

[8] Unfortunately, counsel for the appellant has misconstrued the above statement. Counsel appears to suggest that discounting separately for a guilty plea involves a principle. There is no such principle in sentencing. Sentencing is never a mathematical exercise using a prescribed formula to arrive at a just punishment.

[9] The principle in sentencing is that the punishment must fit the crime. This is known as the proportionality principle. Of course when applying the proportionality principle, the sentencing court must have regard to all the relevant considerations and disregard all the irrelevant considerations to arrive at a sentence that reflects the total criminality involved. The weight to be given to the relevant considerations will depend on the facts of each case. When a sentence is reviewed on an appeal, the sentencing process adopted by the sentencing judge assists the appellate court to see if there is something wrong in the sentencing discretion of the lower court.

[10] The facts admitted by the appellant reveal that this was a dreadful case of sexual assault by a father against his own biological daughter.

[11] The first incident was committed on 3 August 2008. Thereafter the appellant sexually abused his daughter for a period of two years until the matter was reported to the police on 18 January 2010. In the two years the victim was subjected to numerous degrading sexual assaults and on one incident the victim was raped after she was threatened with a cane knife by the appellant.

[12] Initially, the Director of Public Prosecutions filed two representative counts of rape and two representative counts of indecent assault. But later the Information was amended and the Director of Public Prosecutions pursued only one representative count of rape and indecent assault. But the facts admitted by the appellant disclosed 5 incidents of rape and 7 incidents of indecent assault. The learned High Court judge referred to all these incidents in quite detail in his sentencing remarks. After referring to the tariff cases, the learned High Court judge sentenced the appellant by giving the following reasons:

"In this case, the aggravating factors, were as follows:

(i) Breach of Parental Trust. The complainant was your daughter. At the time, she was 19 years old. You were 46 years old. As a father, you are supposed to look after and care for your daughter. Instead, you grossly abused the trust she had in you. This type of offence is becoming prevalent in our community, and it's about time, severe sentences are given out, as a warning to would be offenders;

(ii) Threats to the complainant. On the facts, you always threatened to kill the complainant, if she raised the alarm. This is certainly parental abuse in its extreme. Your behavior towards the complainant showed you as a typical coward, threatening those who could not defend themselves. You must not complain when a long prison sentence is given to you, to protect those who cannot protect themselves:

(iii) Through your offending, you have not only ruined the complainant's life, you have also ruined your family's life. Your family doesn't deserve the treatment you have metered out to them.

The mitigation factors were as follows:

(i) At the age of 50 years, this is your first offence;

(ii) You have raised your family well, until you committed these offences;

(iii) You have been remanded in custody since 15th March 2012, that is, 1 year 8 months 9 days ago.

On the rape charge, I start with 15 years imprisonment. I add 4 years for the aggravating factors, making a total of 19 years imprisonment. I deduct 3 years for the mitigating factors, leaving a balance of 16 years imprisonment.

On the "indecent assault" charge, I start with 3 years imprisonment. I add 2 years for the aggravating factors. I deduct 1 year for the mitigating factors. Balance is 4 years imprisonment.

In summary, your sentences are as follows:

(i) Count No. 1: Rape : 16 years imprisonment

(ii) Count No. 2: Indecent Assault : 4 years imprisonment

Because of the principle of totality of sentencing, I direct that the above sentence be concurrent to each other; that is, a total sentence of 16 years imprisonment."

[13] It is clear from the above remarks that the learned judge made no allowance for the appellant's guilty pleas. My second concern is that when the appellant's remand period is added to his non-parole period, the total years of incarceration comes to 16 years 8 months and 9 days. The total incarceration exceeds the sentence of 16 years that was imposed on the appellant. There is an arguable error that the appellant's guilty plea and remand period was not given proper consideration by the learned High Court judge.

Result
[14] Leave to appeal against sentence is granted on the above two grounds.

.................................
Hon. Justice D. Goundar
JUSTICE OF APPEAL

At Suva

19 September 2014

Solicitors:

Office of the Legal Aid Commission for Appellant

Office of the Director of Public Prosecutions for State