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Court of Appeal of Fiji |
IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT
CRIMINAL APPEAL NO: AAU0022 of 2012
High Court Criminal Case No. HAC 034 of 2011
BETWEEN:
POATE RAINIMA
Appellant
AND:
STATE
Respondent
Coram: Calanchini P
Jayasuriya JA
Madigan JA
Counsel: Mr. S. Sharma for the appellant
Ms. P. Madanavosa for the Respondent
Date of Hearing: 9 February 2015
Date of Judgment: 27 February 2015
JUDGMENT
Calanchini P:
[1] I have had the opportunity to read in draft the judgments of both Jayasuria JA and Madigan JA and agree with their reasons and
their conclusion that the appeal against sentence should be dismissed.
Jayasuriya JA:
Introduction
[2] The appellant was charged with seven counts. In the first and the fourth counts, he was charged with Rape. Second, third and the fifth counts were for the offence of Indecent Assault and the sixth and seventh counts were for Sexual Assault.
[3] These seven counts reflect a series of incidents of sexual abuse spanning over a period of nine years. The first of these incidents had taken place between 30th April 2002 and 31st August 2002. On that occasion the Appellant had committed Rape, on the victim who was six years old. The appellant, who is the step grandfather of the victim, was forty-five years old, when he committed the first offence of rape.
[4] The Appellant pleaded guilty to all seven counts and was convicted accordingly.
[5] This appeal is against the sentence imposed by the learned trial judge.
[6] Following sentences were imposed on the appellant.
[7] All these sentences of imprisonment were ordered to run concurrently, making a total sentence of 13 years imprisonment. A non–parole period of 12 years imprisonment was also ordered.
[8] The trial judge had taken into account a series of mitigating factors as well as aggravating factors in arriving at the periods of imprisonment reflected above.
[9] Appellant challenges the sentence on two grounds. They are:
FAILURE TO DEDUCT THE REMAND PERIOD
[10] It was submitted that the appellant spent 1 year 1 month and 15 days period in remand pending trial in this case. The State did not dispute this fact.
[11] The Sentencing Order of 15th March 2012 reflects that the learned trial judge had taken into account the period the appellant spent in remand as one of the mitigating factors, in arriving at the final term of imprisonment.
[12] Section 24 of the Sentencing and Penalties Decree 2009, requires a court to regard any period of time during which the offender was held in custody pending trial, as a period of imprisonment already served by an accused person. However, a court in its discretion can order otherwise.
[13] On behalf of the Appellant, it was submitted that the trial judge did not satisfy this requirement as he failed to consider the time the appellant spent in custody pending trial as a separate factor and make a specific deduction equal to such period of time, in determining the term of imprisonment imposed on the appellant.
[14] The State conceded that the trial judge should have made a separate downward adjustment to the sentence according to the time spent in custody and therefore contravened Section 24 of the Sentencing and Penalties Decree 2009.
[15] State moved this court to pass a sentence 'warranted by law' as provided under section 23(3) of the Court of Appeal Act, Cap 12.
DISCOUNT FOR GUILTY PLEA
[16] The next ground urged on behalf of the Appellant is, that the trial judge failed to quantify the discount that had been given to the guilty plea but had subsumed this factor as a part of mitigation in arriving at the final term of imprisonment imposed on the appellant
[17] The Appellant relies on Naikelekelevesi v The State; [2008]FJCA 11; AAU 0061/2007 (27 June 2008) where it was observed that:
"where there is a guilty plea, this should be discounted for separately from the mitigating factor in a case"
[18] On behalf of the State, it was submitted that the trial judge in fact had taken into account the guilty plea and its favourable consequences to the victim in determining the sentence. However, in response to a question posed by this court the counsel for the State submitted that a reduction of around 15% from the overall sentence would meet ends of justice in this case, if the reduction is to be quantified and set out as a separate factor.
DETERMINATION
[19] Sentencing of offenders is an integral and important part of the Administration of Criminal Justice process. When statutes have set out different levels of punishment to different offences, it leaves a broad discretion on a court to determine the exact type and the level of punishment that will be imposed in a given situation.
[20] Sentencing and Penalties Decree 2009 sets out broad guidelines on sentencing as well as specific requirements that need to be adhered to, in imposing sentences of imprisonment.
[21] Section 4 (1) of the Decree (supra) identifies inter alia following purposes for which sentencing may be imposed by a court:
[22] Section 4(2) of the Decree (supra) recognizes several factors a court must have regard to in sentencing offenders. They include: whether the offender pleaded guilty or not, the stage at which such plea was entered if he had pleaded guilty and whether the offender's conduct is an indication of remorse or lack of remorse. This section also recognizes the impact of an offence on any victim as a factor a court must give due regard to, in deciding on the sentence, in a given situation.
[23] In Khan v The State [2014] FJCA 92; AAU 105/2011 (2 June 2014) it was observed:
"the Sentencing and Penalties Decree has left it to the decision of the sentencing court to give an appropriate weight to a guilty plea when sentencing an offender"
[24] While making the above observation, the court further opined that:
"Naikelekelevesi's case was considered before the Sentencing and Penalties Decree came into effect in 2010. The Sentencing and Penalties Decree has not endorsed the Naikelekelevesi principle"
[25] The trial judge in this case had observed the following:
(a) "You pleaded guilty to the charges, although this was approximately 1 year 1 month after the first call in the High Court. Consequently, you have saved the court's time, and avoided the need for the complainant to relive her ordeal in the court room by giving evidence;
(b) It appears you are remorseful, and as a result you have voluntarily admitted your guilt, on all the offences"
[26] The trial judge had taken these factors relating to the 'guilty plea' into his account in determining the sentence, despite he has 'subsumed' these factors among the other factors that were considered as mitigating factors.
[27] Similarly, the trial judge has taken into account the remand period of the appellant also as a mitigating factor in determining the sentence.
[28] Therefore, the issues this court in exercising its appellate jurisdiction, has to resolve are, whether the trial judge has failed to comply with the statutory requirements set out in the Sentencing and Penalties Decree, 2009 and if so whether such failure had occasioned a substantial miscarriage of justice to the appellant. This court will further examine whether a different sentence should have been passed taking into account all the facts and circumstances of this case, including any errors of law or fact of the trial court.
[29] In determining these issues, I am more inclined to engage in an assessment keeping in mind the broader principles of sentencing statutorily recognised as sentencing guidelines in section 4 of the Sentencing and Penalties Decree, 2009 rather than converting its process to applying a series of mathematical equations.
[30] It is also pertinent to note that the trial judge in determining the sentence in this case has used 11 years as a starting point which is towards the lower end of the accepted tariff for a case of this nature – committing rape on a child victim. The Supreme Court in Raj v The State [2014] FJSC 12; CAV 0003.2014 (20 August 2014) approved 10-16 years imprisonment as the correct tariff for the rape of a child.
[31] Therefore, the starting point of 11 years for the offence of rape in this case, is well within the lawful tariff for a case of child rape.
[32] In this case the appellant who is the step grandfather of the victim abused his position of trust and command, in abusing the victim for a continuous period of nearly nine years. When the first incident of penile penetration occurred the victim was 6 year old child. It had not been an isolated incident but the beginning of a series of continued abuse. The conduct of the appellant converted the safest place for the victim – her home - to the most dangerous place in this world.
[33] The victim impact statement admitted in the trial court reflects that the victim 'has shown a lot of changes in life style for a young girl of her age. The trauma she had gone through during the incident had affected her mentally, physically. She feels like to be isolated all the times, lack of concentration, having nightmare and slow to respond'.
[34] I observe that the final sentence of 13 years, that had been imposed on the appellant for two counts of Rape, still remain towards the lower end of the lawful tariff.
[35] In arriving at this final figure, the following deductions had been made by the trial Judge, taking into account several mitigating factors:
[36] The factors other than the time spent in remand custody and factors relating to the 'guilty plea' that were taken into account by the trial judge are as follows:
[37] Furthermore, I am of the view that the factors (a) and (b) above will have an insignificant impact as mitigating factors in a case of this nature. It is the marriage between the appellant and the victim's grandmother which gave the opportunity to the appellant to commit this series of sexual assaults on the six year old victim. The appellant had totally disregarded and ignored the moral responsibilities that are attached to a marital relationship, more particularly, the responsibility to care and foster their descendants. A more humane and responsible conduct is expected from a middle aged man. The fact that the appellant received formal education only up to class 6 cannot mitigate the legal consequences attached to his immoral conduct.
[38] Therefore the deduction of 5 years for the offence of rape in this case can be reasonably accounted for the time spent in remand, the guilty plea and the good behavior (good character) of the appellant.
[39] It is also pertinent to note, that the trial judge had ordered terms of imprisonments imposed on all seven counts to operate concurrently, making the total period of incarceration to 13 years.
[40] In Raj (supra) the Supreme Court cited with approval and endorsed the following observation of the Court of Appeal:
"Rapes of juveniles (under the age of 18 years) must attract a sentence of at least 10 years and the accepted range of sentences is between 10 and 16 years. There can be no fault in the sentencing approach of the learned Judge referred to above (in paragraph 13), save as to say we do not consider that allowance should have been made for family circumstances. To that extent the appellant was afforded leniency that he did not deserve."
[41] I am of the view that any further deductions to the 13 year sentence of imprisonment in this case will fail to signify that the court and the community denounce the commission of such action as well as will fail to deter offenders or other persons from committing offences of the same or similar nature.
[42] Taking into account all these factors, I am of the view that the sentence imposed by the trial court is lawful and this court should not intervene with it. Therefore, pursuant to section 23(3) of the Court of Appeal Act, Cap. 12, the appeal is dismissed and the sentence imposed by the trial Judge is affirmed.
Madigan JA:
[43] I have read in draft the judgment of Jayasuriya J.A. and I would agree that the appeal against sentence should be dismissed given
the very lenient sentence already passed on the appellant in the Court below.
[44] I would however add the following paragraphs with regard to sentencing practice and pleas of guilty.
[45] Although the judge passing sentence below took all matters complained of into consideration when assessing an appropriate "global" sentence, it is better sentencing practice to specify terms of discount when allowing for such matters as pleas of guilty, time on remand and clear record for example. The convict and the reader can then see easily the various components of a sentence and sentence appeals could be prevented.
[46] Discount for a plea of guilty should be the last component of a sentence after additions and deductions are made for aggravating and mitigating circumstances respectively. It has always been accepted (though not by authorative judgment) that the "high water mark" of discount is one third for a plea willingly made at the earliest opportunity. This Court now adopts that principle to be valid and to be applied in all future proceedings at first instance.
[47] Pleas of guilty made at later stages than earliest opportunity cause more difficulties in the assessment of how much discount should be afforded to them. It is not for this Court to suggest an appropriate sliding scale because it must remain a matter of judicial discretion. We would however make three points very clear in this regard:
(i) A plea of guilty before trial must be afforded some discount given that the cost of trial (including time and cost of assessors) is saved.
(ii) A plea of guilty at a later stage before a trial involving a vulnerable witness must be given a meaningful discount (say 20-25%) to recognize the fact that the vulnerable witness is not put through the ordeal of giving evidence.
(iii) A plea during trial after an accused has heard unshakeable evidence of a victim/complainant or after an inculpatorycaution interview has been admitted into evidence is not deserving of any discount whatsoever.
The Orders of the Court are:
Hon. Mr. Justice William Calanchini
President, Court of Appeal
Hon. Mr. Justice Jayantha Jayasuriya
Justice of Appeal
Hon. Mr. Justice Paul Madigan
Justice of Appeal
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