Namado v State [2015] FJCA 125; AAU0055.2012 (28 September 2015)

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

CRIMINAL APPEAL NO. AAU 0055 OF 2012
[High Court Criminal Case No. HAC 094 of 2010]

BETWEEN:

ILIESA NAMADO
Appellant

AND:

THE STATE
Respondent

Coram : The Hon. Mr. Justice Daniel Goundar

Counsel : Mr. J. Savou for the Appellant
Ms P. Madanavosa for the Respondent

Date of Hearing : 10 September 2015
Date of Ruling : 28 September 2015

RULING

[1] This is a timely application for leave to appeal against conviction and sentence.

[2] The appellant was charged with three counts of indecent assault and one count of rape. Following a trial, he was convicted on all charges and sentenced to a total term of 8 years' imprisonment with a non-parole period of 5 years.

[3] The proposed grounds of appeal are:

1) That the learned trial Judge erred in law and in fact when he accepted suggestions by State counsel on the fourth count of Rape by suggesting that the Appellant had inserted his finger into the vagina of the complainant when the complainant in her evidence only mentioned touching.

2) That the learned trial Judge erred in law and fact when he failed to separately discount the two (2) years the Appellant spend in remand.

3) That the learned trial Judge erred in fact and law when he failed to justify the imposition of a non-parole period considering the circumstances of the Appellant.

[4] At the hearing, the second ground of appeal against sentence was abandoned.

[5] The first ground of appeal relates to lack of evidence on the element of penetration on the fourth count of rape. Counsel for the appellant submits that the complainant only referred to touching of her vagina by the appellant and not insertion of his finger into her vagina. Counsel for the State submits that the trial judge in the summary of the evidence has referred to the evidence of insertion of the appellant's two fingers into the complainant's vagina. Counsel for the State has further referred to the admission contained in the appellant's caution interview that he inserted his finger into the complainant's vagina.

[6] Counsel for the appellant does not suggest that the trial judge has misdirected on the facts. According to the summing up, there was evidence from which the assessors could find that the appellant had digitally penetrated the complainant's vagina as alleged on count 4.

[7] The second ground relates to the discount given in sentence for the appellant's remand period. The appellant's remand period was about 2 years. In giving discount, the trial judge subsumed this period in the total discount given for the mitigating factors. The only compelling mitigating factor was the appellant's previous good character. The trial judge gave a generous reduction of 3 years for the remand period and the remaining 2 years adequately reflected his previous good character. Otherwise, the sentence is on the lower end of the tariff. This ground is not arguable.

Result
[8] Leave to appeal conviction and sentence is refused.

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