Vila v State [2014] FJCA 52; AAU0013.2012 (16 April 2014)

IN THE COURT OF APPEAL
On appeal from the High Court

CRIMINAL APPEAL NO: AAU0013 OF 2012
HAC136 of 2010 Lautoka

BETWEEN:

NIKO VILA
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA

Counsel : Mr. J. Savou for the Appellant
Mr. M. Delaney for the Respondent

Date of Hearing : 4 April 2014
Date of Ruling : 16 April 2014

RULING

[1] Niko Vila (the appellant) was tried and convicted of digital rape of a 6-year old girl in the High Court at Lautoka. He was sentenced to 14 years' imprisonment with 12 years as non-parole.

[2] This is an application for leave to appeal against conviction and sentence pursuant to section 21(1) of the Court of Appeal Act. The test for leave is whether the ground of appeal is arguable before the Full Court.

Conviction appeal
[3] The ground of appeal against conviction is as follows:

"The Learned Trial Judge erred in law and in fact when he failed to overturn the majority guilty opinion of the assessors when the evidence of the complainant did not confirm the element of penetration."

[4] Sufficiency of evidence on an element of the charged offence involves consideration of facts. The appellant contends that there was no evidence of penetration from the victim in this case.

[5] The victim's evidence was summarized at paragraph 29 of the summing up. At the time the victim gave evidence, she was 8 years old. The victim's evidence was when the appellant touched her vio (meaning vagina) she felt pain. The victim was medically examined two days after the alleged incident. Upon examination of the victim's genitalia, the doctor observed redness on the vaginal area and vagina hymen was not visible. The doctor's opinion was that the perforated hymen meant that the hymen had been penetrated. In cross-examination the doctor could not tell how old the perforation of the hymen was. The trial judge at paragraph 43 of his summing up told the assessors to consider the issue of penetration in light of the medical evidence. At paragraph 46 of the summing up, the trial judge directed the assessors that they had to be satisfied beyond reasonable doubt that the accused did put his fingers into the vagina of AV for him to be guilty of rape.

[6] Whether there was penetration of the victim's vagina was a question of fact. I accept that the victim said in her evidence that the appellant touched her vagina after taking her underwear off. She did not use the word penetration in her evidence. In considering whether there was penetration, the assessors were entitled to take into account the victim's evidence and the confirmatory medical evidence. When considered together it was open to the assessors to conclude that there was penetration of the victim's vagina.

[7] The ground of appeal against conviction is not arguable and the conviction appeal cannot possibly succeed.

Sentence appeal
[8] The grounds of appeal against sentence are:

"The learned trial Judge erred in law when he imposed a non-parole period when the imposition of the non-parole offended against the remission as allowed in the Prisons and Corrections Act 2006.

The Learned Trial Judge failed to discount the period the Appellant was in remand.

The Learned Trial Judge erred in law and fact in not accepting mitigation proffered by the Appellant whilst sentencing the Appellant.

The Learned Trial Judge erred in law and fact when he treated the Appellant's case theory as an Aggravating feature whilst sentencing."

Non parole remission
[9] Remission is an irrelevant consideration in sentencing and is a matter that should not
affect the sentencing discretion of the judge. This ground is not arguable.

Remand period
[10] The appellant submits his remand period of 2 months was not taken into account in the sentence. The State concedes this ground is arguable.

Mitigating factors
[11] The appellant made no submission on this ground. In any event, the trial judge made a downward adjustment of 2 years to the sentence for the mitigating factors.

Aggravating factors
[12] The learned judge picked 14 years as a starting point to reflect the tender age of the victim. He then added two years to reflect the aggravating factors identified at paragraphs 12 – 15 of his sentencing remarks as follows:

"The victim in this case was only six years of age at the time of the incident. She was just stepping into her formative ages and moving around playing even around the time of the incident. The accused, who was 66 years old, had three sons – all above 39 years of age – and nine grandchildren.

The accused, in the circumstances, either knew or ought to have known the value of children; and, that they needed protection and shelter from adults. Despite that, the accused raped the little granddaughter to satisfy his unnatural lust occasioning a serious breach of trust and morality.

The conduct of the accused was a calculated one as he took advantage of child-gullibility and practiced a trick on the victim to lure her to his house by showing some beans in order to engage in the unlawful sexual act.

The accused's engagement in his unilateral sexual activity with a little girl who was insensitive to such activity is most abhorrent. This kind of immoral act on a little girl in the calibre of AV is bound to yield adverse results and psychological trauma, the effect of which is indeed difficult to foresee and assess even by psychologists or sociologist. The depravity of the accused in committing the offence should be denounced to save little children for their own future; and, the men of the accused's caliber should not be allowed to deny the children of their legitimate place in the community. In passing down the sentence in a case of this nature, deterrence is, therefore, of paramount importance".

[13] It is clear that the learned judge used the serious breach of trust and the fact that the appellant exploited the victim's vulnerability as a child as aggravating factors to increase the sentence. There is no arguable error in the manner in which the learned judge dealt with the aggravating factors.

Result

[14] Leave to appeal against conviction is refused.

[15] Leave to appeal against sentence allowed on ground 2 only.

Hon. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Office of the Legal Aid Commission for the Appellant.
Office of the Director of Public Prosecutions for the Respondent.