Ram v State [2015] FJCA 24; AAU108.2011 (27 February 2015)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO. AAU 108 of 2011
(High Court HAC 119 of 2010)

BETWEEN:

FELIX RAM
Appellant

AND:

THE STATE
Respondent

Coram : Calanchini P
Chandra JA
Jayasuriya JA

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

Date of Hearing : 5 February 2015
Date of Judgment : 27 February 2015

JUDGMENT

Calanchini P

[1] I have read the judgment of Chandra JA and agree that the appeal should be allowed and the sentence varied as proposed in his judgment.

Chandra JA

[2] The Appellant was charged with one count of rape contrary to sections 207(1) and section 207(2) of the Crimes Decree 2009.

[3] The facts admitted by the Appellant were that he was staying with the victim's family, he being related to the victim's father. The mother had left the house to visit the father in hospital and left the victim who was 9 years old and her elder brother in the care of the Appellant. After dinner the two children had gone to sleep on a mattress. The boy had asked the Appellant to sleep on the mattress with them, as their mother had not returned. The Appellant had blown out the candle and joined them on the mattress. The boy had told the victim to lie in the middle between him and the Appellant. While lying down the Appellant had pulled down the victim's panties and used his fingers to indecently invade her. The victim had felt pain and tried to push his hand away, but the Appellant had persisted. The next morning the victim had told her mother about the incident and the Appellant had been chased away and the Police had been informed.

[4] At the trial the Appellant had pleaded guilty and was convicted and sentenced to 11 years imprisonment with a non-parole period of 9 years.

[5] The Appellant appealed against his sentence and was granted leave. The grounds of appeal relied on according to the written submissions filed were the following:

1. The learned High Court Judge erred in fact and law when he failed to deduct the time the Appellant spent in remand.
   
2. 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.
   

[6] Counsel for the Appellant at the hearing of the Appeal sought leave to pursue a further ground of appeal that the sentence imposed was harsh and excessive as the starting point taken in sentencing the Appellant was high which resulted in the sentence that was finally imposed.

[7] Counsel for the Appellant submitted that he was not pursuing the 2nd ground of appeal but pursued with the first ground of appeal and the ground of appeal set out orally at the argument stage for which he sought leave.

[8] The Court allowed the Appellant to pursue the added ground of appeal and both parties made oral submissions regarding same.

Consideration of the Grounds of Appeal

[9] The first ground of appeal was as regards the failure of the learned High Court Judge to take into account the period that the Appellant was in remand when imposing the sentence.

[10] The facts set out in the record of the High Court were not very clear as to the exact period of remand but however, both Counsel agreed that the period of remand was about 3 months and Counsel for the Respondent conceded that the said period had not been taken into account when the sentence was imposed.

[11] The law relating to this position of taking into account the period in remand when imposing a sentence has been clearly laid down in several decisions of the Court of Appeal.

[12] Section 24 of the Sentences and Penalties Decree 2009 provides:

"If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court considers otherwise orders, be regarded by the Court as a period of imprisonment already served by the offender."

[13] In Kean v The State [2013] FJCA 14; AAU0018 of 2008 (5 March 2013) it was decided by the Court of Appeal that as a matter of sentencing principle, the sentencing court should make a downward adjustment to the sentence for a period that the accused spent in custody on remand before sentence. Accordingly, a period of 5 months was deducted being the period spent in remand before trial.

[14] In Naivalurua Koroitavalena v State [2014] FJCA 185; AAU0051 of 2010 (5 December 2014) it was stated referring to Section 24 of the Sentencing and Penalties Decree, 2009:

"[20] This section mandates the trial Judge to deduct the period that an accused is held in custody prior to the trial when imposing a sentence. However, if the trial Judge is of the view that such period should be so deducted, he should give reasons for not doing so."

[15] In the present case, the learned High Court Judge had not deducted the period that the Appellant had been in remand which as stated above was three months nor had he given reasons for not doing so.

[16] Therefore the Appellant is entitled to a deduction of three months from the period of imprisonment imposed on him.

[17] The Appellant was not pursuing the second ground of appeal. However, it would be relevant to state the position set out regarding the imposition of the non parole period relating to Section18 of the Sentencing and Penalties Decree, 2009 in the case of Savu v State [2014] FJCA 208; AAU0090 of 2012 (5 December 2014) to the following effect:

"Section 18 subsection (1) has to be read subject to sub section (2) The effect of thee two provisions is that an offender who is imprisoned for 2 years or more must be subject to a non-parole period unless due to the nature of the offence, or the past history of the offender, fixing a non-parole period is inappropriate. In other words, fixing a non-parole period for a term of 2 years or more is mandatory unless for the limited reasons provided by subsection(2) the court declines to fix one. It therefore follows that when the court fixed a non-parole period under sub section (1), the court is not required to give reasons for its decision because the provision is mandatory. However, if the court declines to fix a non-parole period then the court must give reasons for exercising the discretion under subsection (2)."

[18] The new ground of appeal which the Court allowed to pursue when Counsel sought leave when arguing the case for the Appellant was as regards the harshness of the sentence on the basis of the higher starting point adopted by the learned High Court Judge in sentencing the Appellant.

[19] The following observations were made by the Court of Appeal in Drotini v The State [2006] FJCA 26; AAU0001 of 2005S (24 March 2006) regarding sentencing in cases of rape specially involving child victims by relatives:

"[16] There are few more serious aggravating circumstances than where the rape is committed on a juvenile girl by a family member or someone who is in a position of special trust. The seriousness of the offence is exaggerated by the fact that family loyalties and emotions all too often enable the offender or other family members to prevent a complaint going outside the family. If the child then remains in the family home, the rapist often has the opportunity to repeat the offence and to hope for the same protection from the rest of the family.

[17] Cases of rape by fathers or step fathers appear before the courts in Fiji far too frequently and, in such cases, the starting point should be increased to ten years. Where there are further aggravating circumstances beyond those basic circumstances, such as repeated sexual molestation of any nature, threats of violence or actual violence or evidence that the offender has attempted to persuade other family members to help cover up the offences or discourage complaint to the police, there should be substantial increases above that starting point."

[20] The victim in Drotini's case was 9 or 10 years old and was the step daughter of the accused and was convicted of one count of indecent assault and two counts of rape. The starting point for sentencing was ten years and the final sentence was 11 years imprisonment.

[21] In Anand Abhay Raj v The State [2014] FJSC 12. CAV0003 of 2014 (20 August 2014) the Supreme Court affirmed the sentence of 16 years imprisonment where the accused who was the step father was convicted of raping a child who was 10 years old, there being four counts of rape and one count of indecent assault. The starting point of the sentencing by the High Court Judge was 12 years which ultimately was made up to 16 years imprisonment with a non-parole period of 12 years.

[22] Drotini's case and Raj's case were cases where there was penile rape of the young victims on more than one occasion whereas in the present case the rape was not a penile rape but one when the Appellant had used his fingers to abuse the victim. This was the only occasion regarding which the Appellant was charged with. That however, does not take away the trust reposed on him when the victim was placed in his care by her mother.

[23] In the present case the learned High Court Judge commenced sentencing at a starting point of 14 years whereas in Drotini's case the starting point was 10 years and in Raj's case the starting point was 12 years, which were cases where there were penile rapes on more than one occasion. In those circumstances, the starting point of 14 years adopted by the learned High Court Judge in this case is too high. It would have been appropriate if the starting point was 12 years and adopting the methodology adopted by the learned High Court Judge, the aggravating circumstances would increase the term to 14 years. The deductions allowed were 2 years for demonstrable remorse and religious mitigation and a further 3 years for the guilty plea which would result in the final term being 9 years. The three months that he spent in remand would be deducted resulting in the term being 8 years and 9 months.

[24] This would be a fit case to interfere with the sentence that was imposed on the Appellant. The sentence of 11 years imposed on the Appellant is quashed and substituted with a sentence of 8 years and 9 months from 12th October 2011 with a non parole period of 7 years and six months.

Jayasuriya JA

[25] I had the opportunity to read the draft judgment of Chandra JA. I agree with Chandra JA's decision to allow the appeal and vary the sentence for the reasons stated therein.

Orders of Court

The Appeal of the Appellant is allowed to the extent that the sentence of 11 years imposed on him by the learned trial Judge is quashed and substituted with a sentence of 8 years and 9months with a non-parole period of 7 years and six months.

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Hon. Mr Justice Calanchini
PRESIDENT, COURT OF APPEAL

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Hon. Mr Justice Chandra
JUSTICE OF APPEAL

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Hon. Mr Justice Jayasuriya
JUSTICE OF APPEAL