State v Volotui [2015] FJCA 176; AAU0080.2015 (23 December 2015)

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

CRIMINAL APPEAL NO: AAU0080 OF 2015
(High Court Case No: HAC 192/2011)

BETWEEN:

THE STATE
Appellant

AND:

SAKUISA VOLOTUI
Respondent

Coram : Goundar JA

Counsel : Mr. L.J. Burney & Mr. E. Samisoni for the State
Mr. M. Yunus for the Respondent

Date of Hearing : 14 December 2015
Date of Ruling : 23 December 2015

RULING

[1] The respondent appeared in the High Court at Lautoka and pleaded guilty to a charge of rape contrary to section 207(2)(b) of the Crimes Decree No. 44 of 2009. On 15 June 2015, he was sentenced to 5 years' imprisonment. The learned judge declined to fix a non-parole period. This is an application by the State for leave to appeal against sentence pursuant to section 21(2)(c) of the Court of Appeal Act, Cap. 12. The test for leave is whether there is an arguable error in the sentencing discretion.

[2] The grounds of appeal are:

1. That the learned sentencing judge erred in law when he failed to fix a non-parole period when sentencing the respondent.

2. That the learned sentencing judge erred in principle when he allowed excessive discount to the mitigating as per the circumstances of the case.

3. That the learned sentencing judge erred in principle when he failed to give a sentence within the tariff in such cases which led to the sentence being manifestly lenient considering the circumstances of the case.

[3] The appeal is late by one day. The State seeks an enlargement of time to seek leave to appeal. The delay was due to internal administrative processes in the Office of the Director of Public Prosecutions. Both parties have filed detailed written submissions.

[4] Briefly, the facts were that on 20 August 2011, the respondent digitally penetrated the anus of the victim with his finger. At the time of the offending, the respondent was 18 years old while the victim was 4 years old. The victim complained to his mother on the same day. The matter was reported to police and under caution the respondent admitted the offence. On the day of the trial, the respondent pleaded guilty to the charge.

[5] Counsel for the State submits that 5 years imprisonment for rape of a child is manifestly lenient given that the Supreme Court in Raj v State unreported Cr. App. No. CAV003 of 2014; 20 August 2014 has endorsed the tariff for child rape to be between 10 to 16 years' imprisonment. Counsel further submits that the learned judge took the following irrelevant considerations into account in sentencing the respondent:

1. Motive – the State says motive of a sexual offender has no bearing on the culpability.

2. Linked the respondent as a juvenile – the State says that the respondent was over 18 years old and an adult.

3. Absence of the victim impact report – the State says the learned judge wrongly assumed that absence of report indicated absence of impact on the victim.

4. Lack of evidence of penile penetration – the State submits that the respondent admitted digital penetration and the learned judge was wrong to draw a distinction between penile and digital penetration when assessing culpability.

[6] Finally, the State submits that in all circumstances of the case, the learned judge was wrong not to fix a non-parole period.

[7] Counsel for the respondent submits that the learned judge was justified in not fixing a non-parole period due to the respondent's extreme youth and previous good character. Counsel submits that the learned judge took into account rehabilitation of the respondent due to his extreme youth and previous good character to justify below the tariff sentence. Counsel submits that there is no arguable error in the sentencing discretion.

[8] I have given careful consideration to all the submissions. At this stage, I feel satisfied that the State's appeal against the respondent's sentence is arguable.

Result
Enlargement of time granted.
Leave granted.

Hon. Justice Daniel Goundar
Justice of Appeal

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