Mataunitoga v State [2015] FJCA 70; AAU125.2013 (28 May 2015)

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

CRIMINAL APPEAL NO. AAU 125 OF 2013
[High Court Case No. HAC 126 of 2013]

BETWEEN:

PAULIASI MATAUNITOGA
Appellant

AND:

THE STATE
Respondent

Coram : Calanchini P
Basnayake JA
Goundar JA

Counsel : Mr. S. Sharma for the Appellant
Mr. Y. Prasad for the Respondent

Date of Hearing : 12 May 2015
Date of Judgment : 28 May 2015

JUDGMENT

Calanchini P:
I have had the opportunity to read in draft the judgment of Goundar JA and agree with his reasons and his proposed orders.

Basnayake JA:
I agree the appeal against sentence should be allowed for the reasons given by Goundar JA.

Goundar JA:
[1] The appellant was charged with one count each of rape and indecent assault under the Penal Code, Cap. 17. The charges were representative counts. The appellant pleaded guilty to the charges in the High Court at Suva, and was sentenced to 16 years' imprisonment for rape and 4 years' imprisonment for indecent assault, to be served concurrently. He was further ordered to serve a non-parole period of 15 years.

[2] On 19 September 2014, I granted the appellant leave to appeal against his sentence. At paragraph [13] of the leave ruling, I said that it could be argued that in sentencing the appellant, the learned High Court judge did not give proper consideration to the appellant's guilty pleas and remand period.

Facts
[3] The facts that were tendered by the prosecution and admitted by the appellant after he pleaded guilty to the charges showed that the victim who was the appellant's biological daughter was subjected to sexual abuse over a period of 1½ years at Vatukalo Village in Levuka, Ovalau where the appellant and the victim resided. At the time, the victim was 19 years old while the appellant was 46 years old.

[4] The incidents of abuse in summary are:

3 August 2008 – the appellant forced the victim to masturbate him until he ejaculated.

4 August 2008 – the appellant forced the victim to have sexual intercourse with him until he ejaculated.

22 September 2008 – the appellant forced the victim to masturbate him until he ejaculated.

29 October 2008 – the appellant threatened the victim with a cane knife and then forced her to have sexual intercourse.

26 November 2008 – the appellant forced the victim to have sexual intercourse.

1-31 December 2008 – the appellant forced the victim to masturbate him.

30 January 2009 – the appellant forced the victim to masturbate him.

28 March 2009 – the appellant forced the victim to masturbate him and threatened to kill her if she complained.

16 June 2009 – the appellant forced the victim to masturbate him and threatened to kill her.

27 August 2009 – the appellant forced the victim to have sexual intercourse with him.

26 December 2009 – the appellant fondled the victim's breasts and vagina.

17 January 2010 – the appellant forced the victim to have sexual intercourse with him until he ejaculated.

[5] When the victim's mother got suspicious, she had a conversation with the victim. The victim informed her mother about the sexual incidents with the appellant. The matter was reported to the police. Under caution, the appellant admitted having sexual intercourse with the victim.

[6] On 18 January 2010, the victim was medically examined. The court record is unclear as to whether the medical report was tendered as part of the facts. The medical report stated that the victim was 32 weeks pregnant. The examining doctor recommended counselling for the victim. No evidence was led that the rape by the appellant resulted in pregnancy of the victim.

[7] An antecedent report was tendered as part of the facts. According to the antecedent report, the appellant worked as a Pafco worker and he was also a lay preacher. He came from a family of 8 siblings. He himself had 5 children. On 4 February 2010, the appellant was sentenced to 9 months' imprisonment for indecent assault, that is, three weeks after the last incident with the victim. No evidence was led whether the conviction for the indecent assault involved the same victim. It appears that at the time these offences were committed, the appellant had a clean criminal record.

[8] A victim impact report was also tendered. According to the report, the victim had moved on with her life and has two sons of her own, aged 5 and 4 respectively. The report also stated that the victim does not want to have any contact with the appellant.

Proceedings in the courts below
[9] Initially, the appellant was charged with 6 counts of incest, 5 counts of indecently annoying a person and 1 count of indecent assault. On 6 May 2012, he appeared in the Magistrates' Court and pleaded guilty to the charges. The learned Magistrate transferred the case to the High Court without entering a conviction against the appellant.

[10] On 22 March 2013, the case was called in the High Court and adjourned to 12 April 2013. According to the court record, when the appellant appeared in the High Court on 12 April 2013, he maintained his guilty pleas. However, the State indicated to the Court that they wanted the matter to be dealt afresh after the appellant had been given an opportunity to consult a legal counsel. Thereafter, numerous adjournments were granted for the appellant to engage counsel until 29 August 2013 when the legal aid was approved. A trial date was set for 18 November 2013. However, on 5 November 2013, when the appellant appeared in the High Court for a pre-trial conference, his counsel advised the learned judge that the appellant wanted to plead guilty. The Information was read and explained to the appellant. The appellant pleaded guilty to the charges, which were recorded by the learned judge.

[11] On 11 November 2013, counsel for the appellant offered the following mitigation, recorded by the learned judge:

"Previous conviction: First offender.

50 years old, married with 5 children aged between 16 and 26 years i.e. 3 boys and 2 girls.

Victim is 2nd eldest and his eldest daughter.

(c) First offender.

(d) Apologizes to his family and victim.

(e) Pleaded guilty.

(f) Remanded in custody for 1 year 8 months".

[12] On 25 November 2013, the appellant was sentenced to a total term of 16 years' imprisonment. In his opening remarks, the learned judge referred to the charges and the facts that were tendered by the prosecution in support of the charges. He considered the previous cases on rape and indecent assault to identify an appropriate range for the sentence. The learned judge said the tariff for adult rape was between 7 and 15 years' imprisonment, while the tariff for indecent assault was between 1 and 4 years' imprisonment. Using a starting point approach to sentence, the learned judge used 15 years for rape and 3 years for indecent assault, and then adjusted the sentences to reflect the following mitigating and aggravating factors:

8. In this case, the aggravating factors, were as follows:
   

(i) Breach of parental trust. The complainant was your daughter. At the time, she was 19 years old. You were 46 years old. As a father, you were supposed to look after and care for your daughter. Instead, you grossly abused the trust she had in you. This type of offence is becoming prevalent in our community, and it's about time, severe sentences are given out, as a warning to would be offenders;

(ii) Threats to the complainant. On the facts, you always threatened to kill the complainant, if she raised the alarm. This is certainly parental abuse in its extreme. Your behaviour towards the complainant showed you as a typical coward, threatening those who could not defend themselves. You must not complain when a long prison sentence is given to you to protect those who cannot protect themselves.

(iii) Through your offending, you have not only ruined the complainant's life, you have also ruined your family's life. Your family doesn't deserve the treatment you have metered out to them.

9. The mitigation factors were as follows:

At the age of 50 years, this is your first offence;

You have raised your family well, until you committed these offences;

You have been remanded in custody since 15th March 2012, that is, 1 year 8 months 9 days ago.

[13] After arriving at the individual terms, the learned judge ordered that they be served concurrently. The total sentence was 16 years' imprisonment with a non-parole period of 15 years.

Guilty pleas
[14] It has been a long established principle in common law that when an offender pleads guilty, his or her plea of guilt must be taken into account in sentencing. This principle is now codified in the Sentencing and Penalties Decree 2009. Section (4) (2) (f) of this Decree states:

"In sentencing offenders a court must have regard to-

Whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;"

[15] While it is mandatory for a court to have regard to a guilty plea, the credit to be given to a guilty plea involves an exercise of discretion by sentencing court (Basa v State, unreported Criminal Appeal No. AAU0024 of 2005; 24 March 2006 at para 14). The circumstances of a guilty plea may vary from case to case. An offender may enter an early guilty plea as a sign of remorse for his crime, while a late plea may be entered to escape the inevitable after realising the strength of the evidence against him. Therefore, a late guilty plea may not attract the same discount that an early guilty plea attracts. As the Supreme Court in Wallace Wise v The State (unreported Criminal Appeal No.CAV0004/2015; 24 April 2015) said at para [15]:

"That first opportunity plea was accepted as a substantial sign of remorse. Accordingly he received a substantial discount for the early plea, a long standing practice followed by sentencing courts. (per Gates CJ)

[16] Another factor that may affect the weight of a guilty plea in sentencing is its 'utilitarian value', that is, the plea has saved the State the expense of a contested trial. This factor carries an additional weight in cases of vulnerable witnesses. In Navuniani Koroi v The State (unreported Criminal Appeal No. AAU0037 of 2002S; 14 February 2003) this Court said:

"It has long been the practice of the courts to reduce a sentence where the accused person has pleaded guilty. In most cases that is a recognition of his contrition as expressed by an early admission and the fact that it will save the witnesses and the court a great deal of time and expense. In offences of a sexual nature, the amount of reduction is generally more because the plea saves the victim from having to attend the trial and relive her experience in the witness box."

[17] Similarly, in Kelepi Taqa v The State (unreported Criminal Appeal No. AAU0042 of 2007; 26 June 2009), this Court endorsed the practice of giving substantial discount to an offender who spares a rape victim the ordeal of having to give evidence. The Court said at para [14]:

"Rape cases pose an inherent difficulty in its prosecution because of the nature of evidence that the complainant has to recollect and testify. When an accused pleads guilty, substantial discount should be given for relieving the complainant from giving evidence of sexual nature."

[18] In considering the weight of a guilty plea, sentencing courts are encouraged to give a separate consideration and quantification to the guilty plea (as a matter of practice and not principle), and assess the effect of the plea on the sentence by taking in account all the relevant matters such as remorse, witness vulnerability and utilitarian value. The timing of the plea, of course, will play an important role when making that assessment.

[19] In the present case, it is clear that the learned High Court judge did not have regard to the appellant's guilty plea in sentencing him as required by section 4 (2) (f) of the Sentencing and Penalties Decree 2009. The failure is an error in the sentencing discretion. That discretion now has to be exercised by this Court to correct the error.

[20] The timing of the appellant's plea is important. He first entered guilty pleas when he was arraigned on the charges in the Magistrates' Court. When the case was transferred to the High Court, he maintained his guilty pleas, but upon the prosecution's application to consider the matter afresh, the case was adjourned. Subsequently, the prosecution filed Information charging the appellant with rape and indecent assault, which were different from the offences he pleaded guilty to in the Magistrates' Court. For the reasons not clear from the court record, the learned High Court did not arraign the appellant on the new charges. Instead the trial judge fixed a trial date and when the appellant appeared for a pre-trial conference, he told the court that he wanted to plead guilty to the charges. When the plea was taken, the appellant did in fact plead guilty. His guilty pleas were consistent with the admissions he made in his caution interview. In other words, he maintained a consistent stance in relation to his guilt. If the learned High Court judge would have directed his mind to these factors, he would have concluded that the appellant was genuinely remorseful and therefore entitled for a substantial discount for his guilty pleas based on remorse, sparing the victim who was his daughter from having to give evidence and saving court time and resources.

Remand period
[21] Following his arrest the appellant remained in custody on remand until he pleaded guilty. The length of the pre-trial detention was significant, that is, nearly 21 months. Sentencing courts are required to consider the remand period by making a downward adjustment in sentence. This requirement is expressly stated in section 24 of the Sentencing and Penalties Decree 2009.

[22] In the present case, the learned High Court did consider the appellant's remand period as part of the mitigating factors identified at para 9 of the sentencing remarks. A total reduction of 3 years was made for the appellant's previous good character and remand period. However, the error is not in the head sentence but in the non-parole period of 15 years that the learned judge fixed for the appellant. When the appellant's pre-trial detention is added to his non-parole period, his total incarceration exceeds his head sentence of 16 years. Any deduction for remand period should be reflected in the head sentence and the non-parole period (R v Newman & Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361 at [25] and R v Youkhana [2005] NSWCCA 231 at [10]). The learned judge failed to make adequate reduction in the appellant's non-parole period to reflect his remand period. There is an error in the sentencing discretion in that regard.

Conclusion
[23] The offending by the appellant no doubt was serious. The victim was his biological daughter. Rape of daughters by fathers must attract condign punishment due to gross breach of trust arising from father-daughter relationships. But in this case there are some compelling mitigating factors like an early guilty plea, previous good character and a significant pre-trial detention period. These factors are not adequately reflected in the appellant's total sentence of 16 years' imprisonment with a non-parole period of 15 years.

[24] It must also be borne in mind that the appellant was convicted of two representative counts. The Director of Public Prosecutions elected to charge the appellant with representative counts when specific dates of the sexual incidents were known and available as per the facts tendered by the prosecution to support the guilty pleas. The effect of a representative count is that the offender is convicted of only one incident of the alleged sexual act. In the appellant's case, he is convicted of one incident of rape (count 1) and one incident of indecent assault (count 2), and not multiple offences as disclosed in the facts. When sentencing on a representative count, the court is not entitled to impose a sentence in respect of uncharged crimes (R v Jones [2004] VSCA 68 at [13]). I apply this principle in the present case.

[25] I would quash the sentences imposed by the High Court and substitute a term of 10 years' imprisonment for rape and 2 years' imprisonment for indecent assault, to be served concurrently effective from 25 November 2013. The total sentence now is 10 years' imprisonment with a non-parole period of 6 years. In arriving at the total head sentence and the non-parole period, I have considered the appellant's significant remand period.

Orders of the Court:

Appeal against sentence is allowed.

The sentences imposed by the High Court is set aside and substituted with a term of 10 years' imprisonment for rape and 2 years' imprisonment for indecent assault, to be served concurrently effective from 25 November 2013. A new non-parole period of 6 years' imprisonment is fixed.

........................................
Calanchini P
President Court of Appeal

........................................
Basanayake JA
Justice of Appeal

........................................
Goundar JA
Justice of Appeal

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