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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CRIMINAL APPEAL NO.AAU 0008 OF 2013
[High Court Criminal Case No. HAC 040 of 2012)
BETWEEN:
PENI TUROGO
Appellant
AND:
THE STATE
Respondent
Coram : Calanchini, P
Prematilaka, JA
Rajasinghe, JA
Counsel: Mr. J Savou for the Appellant
Mr. S Babitu with Mr. A Singh for the Respondent
Date of Hearing: 13 September 2016
Date of Judgment: 30 September 2016
JUDGMENT
Calanchini, P
[1] I have read the draft judgment of Prematilaka JA and agree that the appeals against conviction and sentence should be dismissed.
Prematilaka, JA
[2] This appeal arises from the convictions of the Appellant on four counts: one under section 178(1) of the Penal Code Cap.17, two under section 223 of the Crimes Decree No.44 of 2009 and the last under section 212(1) of the Crimes Decree, 2009. The Amended Information dated 29 January 2013 describes the particulars of the first count as the Appellant having had carnal knowledge of P (name withheld), who was to his knowledge his daughter between 01 January 2009 to 31 January 2010, the second count as the Appellant having had carnal knowledge of P (name withheld), his daughter between 01 February 2010 and 31 December 2011, the third count as the Appellant having had carnal knowledge of P (name withheld), his daughter on 14 April 2012 and the fourth count as the Appellant having unlawfully and indecently assaulted a girl by the name P (name withheld) by kissing her on the mouth on 21 May 2012.
[3] After trial the Appellant was found guilty of first three counts and acquitted on the forth count by the unanimous opinion of the assessors and the Learned High Court Judge, having concurred with the assessors, imposed a sentence of 11 years of imprisonment with a non-parole period of 09 years on 01 February 2013 on each count to run concurrently.
Preliminary observations
[4] The Appellant had filed a timely application for leave to appeal against the conviction and the sentence on 08 grounds which were later expanded from time to time. The Appellant had been unrepresented and appeared in person at the hearing into the leave to appeal application against the sentence and conviction where Justice Gounder in the Ruling dated 06 March 2015 had considered 11 grounds of appeal and rejected all of them against the conviction and sentence.
[5] The Appellant had tendered further grounds by way of letters dated 13 October 2015 and 06 June 2016 addressed to the Registrar of the Court of Appeal. However, the written submissions filed by the counsel for the Appellant dated 10 August 2016 contain the same 11 grounds of appeal against the conviction and one against the sentence. The Appellant had sought to have the grounds so rejected determined by this Court in terms of section 35(3) of the Court of Appeal Act.
[6] At the hearing the counsel for the Appellant confined himself only to the grounds set out in his written submissions. In the said written submissions filed on behalf of the Appellant, Grounds 1, 5, 10 and 11 have been withdrawn or abandoned. In addition the counsel for the Appellant informed Court that he was not pursuing Ground 2 as well. Therefore, I would only deal with Grounds 3, 4, 6, 7, 8, 9 and the sole ground on sentence.
Grounds of Appeal
[7] Therefore, the grounds of appeal that would be considered are as follows.
Against conviction
Against sentence
That the sentence ordered by the Trial Court is extremely harsh and excessive.
Ground 3 - That the trial court did not consider that the victim did not report but there was an impersonator who tricked the whole scenario.
[8] The argument of the Appellant is that there had not been a formal complaint by the complainant, her mother, Wati Vuniyasi or her uncle, Waisele Tomu against the Appellant but the complaint had been made by an impersonator. The gist of the Appellant’s grievance is that there should have been directions to the assessors on the alleged impersonator and the absence of such a direction had resulted in grave injustice.
[9] According to the prosecution evidence WPC Angela at the call centre had received a call from a lady called Wati to the effect that the Appellant had been having sexual intercourse with his daughter, which had been communicated to the police post at Dreketi and picked up by WPC Tuliana Cua (W4). Tuliana acting on the instructions of her superior at Seaqaqa police station had commenced initial investigations into the complaint. She had gone to the victim’s school with another police officer and having informed the principal had got the victim down to the office and informed her of the purpose of the visit where she had started to cry. Then, Tuliana had recorded the statement of the victim in the presence of the principal and vice principal and taken to her for the first medical examination accompanied by the vice principal. Finally, Tuliana had left the victim with her uncle Waisele Tomu.
[10] WPC Angela was not called as a witness either by the prosecution or by the defence. Wati had not made any complaint with the police post at Dreketi as there was no officer at that time but she had told about her suspicion of a ‘strong connection’ between the Appellant and the victim based on what she had seen in the night in their house to Waisele, a cousin of the Appellant and a police officer attached to Dreketi police post in the same night. Wati had not been asked either by the prosecution or the defence whether she made a complaint with the call centre. Neither had Waisele been asked whether he made the initial complaint to the call centre. Thus, there is no clear evidence as to who made the first complaint.
[11] This is no run-of-the mill case involving sexual offences. The victim is the daughter and the person who got the initial suspicion is her mother and the Appellant’s wife. Could one reasonably expect any one of them to directly go to the police and make a complaint against the Appellant? In any family, a daughter would be reluctant to make a complaint against the father due to many reasons. In this case the victim has testified that she had not told even the mother of her sexual relationship with the Appellant for fear that the mother would leave the household and the family of 05 siblings; the prosecutrix being the second eldest. It would be extremely difficult for a wife cum mother to summon enough courage to complain against the head of the family and the father of her children. However, in this instance Wati had confided her suspicion of the ‘strong connection’ between the Appellant and the daughter to Waisele, a police officer himself. Thus, the wife as soon as she discovered the suspicious relationship between her daughter and the husband had disclosed it to Waisele, also a relation of the Appellant to set the ball rolling. The Appellant’s evidence is that Tuliana had informed the victim that her mother had reported the matter to Suva police call centre. Therefore, there is every chance that either Wati herself or Waisele on her behalf, perhaps using her name would have brought the complaint to the attention of the police.
[12] But, does it really matter or is it fatal to the convictions that we do not know exactly who had actually given the first information to the police of the incestuous relationship between the Appellant and the victim? My emphatic answer would be in the negative. There is no provision of law regulating or limiting the status of informants who can provide information of suspected crimes. Information given even by an anonymous informant could be the basis of a criminal investigation and is sufficient to set the investigative process in motion. Impersonator is no different.
[13] I think the Learned High Court Judge has adequately addressed the assessors on the receipt of the information in paragraph 4 of the summing up and I do not agree that there should have been directions to the assessors on the so called impersonator. I am of the view that the absence of such a direction had not resulted in any miscarriage of justice to the Appellant. This ground of appeal is accordingly rejected.
Ground 4 - The trial court did not consider that the victim was not allowed to give evidence in court despite the police harassed her by saying that ‘they will lock her up for good if she does not change her statement’ after the charge was changed from Rape to Incest.
[14] The Appellant’s complaint flows from the following questions and answers of the victim’s testimony.
Q: What did the police tell you regarding the complaint?
A: My mother.
Q: Did the police tell you when your mother made the complaint?
A: Refer my statement was taken.
Q: How did you feel when police that before your mother matter?
A: I don’t agree, my statement to the police.
Q: Were you scared at Police?
A: Yes.
[15] There is no evidence that the police had ever used the words on the victim attributed to them under ground 4 and the counsel for the Appellant conceded it at the hearing. The Appellant’s complaint is that the victim’s testimony that she was scared at the police station amounts to some form of evidence of threat held against her leading to her statement implicating the Appellant and therefore, it would have been prudent for the trial judge to address the assessors on that issue.
[16] However one has to look at the evidence of the prosecutrix elsewhere to see whether any evidence could be found on such a threat or intimidation. The perusal of the proceedings reveals that her subsequent evidence is to the contrary. They are as follows:
Q: Did the police force you to tell – (1/1/2009 – 31/01/2010)?
A: They told my mother has reported the matter and they are taking a statement.
Q: Is it correct to say that the reason why you saying that your father had sex with you from 01/01/2009 – 31/01/2010 is because police had said that mother had already reported this matter?
A: They said my mother had report and I told the right thing.
(see page 236)
Q: Did the police threaten you not to change your standing?
A: No.
(see page 242)
[17] On the other hand the Appellant had cross-examined the victim on the influence allegedly exerted by others. The question and answers are as follows.
Q: Your statement earlier that 1st July, 2009 – 31/12/2010 your father had sex with you?
A: Yes.
Q: Did your teacher forced you to tell like that?
A: She told me to tell the right thing.
(see page 236)
Q: Is it true that you were forced to give a statement to police by Master Vili to Dreketi Community Police Post?
A: No.
(see page 241)
[18] Therefore, it is very clear that the prosecutrix had not been pressurised by anyone let alone the police to falsely implicate the Appellant. In the circumstances there is no need for the trial judge to address the assessors on any such threat, intimidation or influence. There is no non-direction here. Thus, I reject ground 4 as well.
Ground 6 - That police at Dreketi and Seaqaqa had abused their powers and breached procedures whilst investigating his case.
Ground 7 - That the officers at the Lambasa DPP’s Office have abused their office as public servants on numerous occasions whilst handling his case.
[19] The counsel for the Appellant argued both grounds together. The pith and substance of the Appellant’s grievance is that the prosecutrix had been given her statement to the police to refresh her memory during the course of the trial as revealed by the following question and answer on 30 January 2012 and that it amounts to an abuse of prosecutorial powers.
Q: Did anyone give your statement given to Police yesterday?
A: I was given.
(page 239)
[20] However, the very next question and answer on the same page is as follows.
Q: Did you anyone give your statement given to Police that morning?
A: No.
[21] It is clear from the proceedings that the examination-in-chief in full and cross-examination in part had been concluded on 29 January 2012 and further cross-examination and re-examination had been concluded on the following day. One cannot unequivocally infer from the above evidence as to when the witness had been given her statement or it is the prosecution that had allowed the victim to refresh her memory by referring to her police statement either before or during the trial without leave of court or informing the defence. Therefore, in my view the allegation of abuse of prosecutorial powers cannot be sustained on the material available in the record.
[22] At the same time it is clear that the victim had had access to her police statement at some stage; either before or after the trial commenced.
Refreshing memory in court
[23] There is no legislation on refreshing of memory whilst giving evidence by the witnesses in Fiji similar to section 139 of the Criminal Justice Act 2003 in UK which has relaxed the common law rules. Section 139 of the Criminal Justice Act 2003 (CJA 2003) provides that a witness may refresh his memory from a document made or verified by him at an earlier time. Under the CJA 2003 the conditions for refreshing memory whilst giving evidence are only that the witness states in his oral evidence that the document records his recollection of the matter at that earlier time and that his recollection at that time is likely to have been significantly better at that time than when he is giving his evidence. Nevertheless, though despite having no binding effect, the principles in section 139 of the CJA 2003 seems to be a useful guide to follow, where appropriate, even in Fiji when it comes to refreshing of memory by witnesses whilst giving evidence.
[24] The CJA 2003 does not expressly purport to abolish the common law in relation to memory refreshing in UK but it would seem that the intention was that it should supersede the common law. Thus, many of the authorities built up at common law continue to have relevance in UK and could be used harmoniously with the said principles set out in section 139 of the CJA 2003 in so far as they are relevant and not inconsistent with common law decisions in Fiji.
[25] A helpful set of guidelines could be found in Blackstone’s Criminal Practice 1993 at page 1834 which states
‘A witness, in the course of giving his evidence, may refer to a document in order to refresh his memory, provided that the document:
(a) was made or verified by him contemporaneously with the events in question;
(b) is, in certain cases, the original; and
(c) is produced for inspection ( if called for by either the court or the opposite party)
....... A witness refreshing his memory in court will normally do so in examination-in-chief but, provided the conditions are met, there is nothing wrong in principle in allowing a witness to refresh his memory during re-examination (Herman (1984) 148 JP 289; Sutton (1991) 94 Cr App R 70). The rule applies to any witness, including the accused (Britton [1987] 1 WLR 539). The application will normally be made by counsel, but it is the proper function of the judge, where the interests of justice demand it, to suggest that a witness, including a prosecution witness, refresh his memory from a document (Tyagi (1986) The Times, 21 July 1986, per Ralph Gibson LJ).
In the 2015 edition at page 2454 it states
‘At common law, a witness in the course of giving evidence, may refer to a document in order to refresh his memory provided that the document was made or verified by him either at the time of the event in question or so shortly thereafter that the facts were fresh in his memory (Simmonds 919690 1 QB 685; Richardson [1971] 2 QB 484; Da Silva [10990] 1 All ER 29 at p.32)’
[26] Witness statements may sometimes include material which, if referred to by the witness whilst giving evidence, may prejudice a fair trial. If this is the case before the witness gives evidence he or she must be told by the prosecutor which part(s) of the statement they should not mention and will not be asked questions about. This course of action will reduce the chances of the witness inadvertently referring to the prejudicial material and/or being confused or surprised when the matters are not mentioned in examination-in-chief. When questioning the witness the prosecutor should lead the witness in such a way that avoids the need for the witness to refer to the prejudicial material. Where, despite these precautions, the witness discloses prejudicial or inadmissible material while giving evidence, and the defence applies to discharge the jury, the prosecution advocate must consider the impact the disclosure is likely to have had on the fairness of the trial, and respond accordingly. If the prosecutor considers that a fair trial is no longer possible, they should support the application and, if the judge discharges the jury, seek a re-trial. Where the prosecutor considers that a fair trial can still take place, they should resist the application. If the Judge nonetheless grants the application and discharges the jury, the prosecutor should seek a retrial. A witness may deliberately or inadvertently disclose prejudicial or inadmissible material while giving evidence. However, deliberately or inadvertently, disclosure of the offending information cannot be said of itself to have any implications about the truthfulness of the witness's evidence.
[27] Supreme Court of Hong Kong in Lau Pak Ngam v. R [1966] Crim LR 443 said
‘Testimony in the witness-box becomes more a test of memory than truthfulness if witnesses are deprived of the opportunity of checking their recollection beforehand by reference to statements or notes made at a time closer to the events in question.’ ‘Refusal of access to statements would tend to create difficulties for honest witnesses but be likely to do little to hamper dishonest witnesses.’
[28] Blackstone’s Criminal Practice 1993 at page 1840 and pages 2460 and 2461 in 2015 edition states
‘If prosecution witnesses have refreshed their memories out of court and before entering the witness-box, it is desirable, but not essential, that the defence should be informed of this (Worley v Bentley [1976] 2 All ER 449, affirmed in Westwell [1976] 2 All ER 812). (See also, sed quaere, H [1992] Crim LR 516, which suggests that child victims of sexual offences should only refresh their memory out of court with the consent of the defence.) In some cases the fact that a witness has read his statement out of court may be relevant to the weight which can properly be attached to his evidence, and injustice might be caused to the accused if the jury were left in ignorance of the fact. Accordingly, if the prosecution are aware that statements have been seen by their witnesses, it will be appropriate to inform the defence, although if for any reason this is not done, the omission cannot of itself be a ground for acquittal (Westwell).
‘If a witness has refreshed his memory out of court and before entering the witness-box, counsel for the other side is entitled not only to inspect the memory-refreshing document, but also to cross-examine the witness upon the relevant matters contained therein. If counsel cross-examines upon material in the document from which the witness had refreshed his memory, the document is not thereby made evidence in the case; but if he cross-examines upon material which has not been referred to by the witness, this entitles the party calling the witness to put the document in evidence so that the tribunal of fact may see the document upon which the cross-examination is based. In this respect, therefore, the rules are the same as those which apply in the case of a witness refreshing his memory in the witness-box (as to which see Senat v Senat [1965] P 172, at F6.10). See
Owen v Edwards (1983) 77 Cr App R 191.’
[29] Though the above rules have not been followed in the instant case, it is on record that the Appellant’s counsel had shown to the victim and cross-examined her with regard to her police statement at some length in an attempt to show inconsistency in her evidence. Therefore, even if the prosecutrix had had access to her police statement at some stage, it had not materially prejudiced the Appellant, for he had had an opportunity to cross-examine her fully on the very statement. No substantial prejudice had resulted from the victim having read her police statement.
[30] I have examined the proceedings carefully and find no evidence of the police officers having abused their authority or committed breaches in procedural steps in investigating into this offence. The Appellant has not demonstrated any serious deviation from the established procedure by the investigating officers.
[31] Therefore, I reject both grounds of appeal set out above.
Ground 8 - The Appellant submits that the victim’s statement contradicted her evidence in Court.
[32] The following questions and answers appear at page 237
‘Q: You still recall the first statement
A: Yes.
Q: You agree with me that statement given the incident was fresh in your mind?
A: yes.
Q: You told the court that you agreed to have sex?
A: Yes.
Q: Did you tell the police that you agreed to have sex with your father?
A: No.
Q: Do you recall that you removed clothes by yourself?
A: Yes.
Q: Did tell that to the police?
A: No.
Q: Do you recall that said that your father ejaculated while having sex?
A: Yes.
Q: Did you tell the police?
A: No.
Q: Do you also recall your father said nothing after sex?
A: Yes.
(Victim was shown her statement)
(Line 18 of her statement shown)
Q: Can you just read that line- (read out)?
Is it correct you said in the court that your father said nothing or your statement to the police that your father said not to tell anyone? Which one is correct?
A: To the police.’
[33] The Appellant complains that the trial judge had failed in the summing up to direct the assessors on the victim’s inconsistent previous statement and the Respondent had stated that the trial judge had actually pointed out to the assessors that the defence had not put to the witness any previous inconsistent statements. However, in my view the proceedings as demonstrated above reveal that there had been some omissions and inconsistencies highlighted by the defence in cross-examination and the trial judge should have brought them to the notice and addressed them appropriately.
[34] The guidelines to direct the assessors on the alleged inconsistencies have been stated by the Supreme Court in Swadesh Kumar Singh v The State [2006] FJSC15 and Praveen Ram v. The State Petition No. CAV0001 of 2011: 09 May 2012. In Mohammed Nadim & Another v. State Criminal Appeal No. AAU 0080 of 2011: 02 October 2015 the Court of Appeal held that the same principles should apply, be they omissions or inconsistencies by stating as follows:
‘Generally speaking, I see no reason as to why similar principles of law and guidelines should not be adopted in respect of omissions as well. Because, be they inconsistencies or omissions both go to the credibility of the witnesses (see R. v O’Neill [1969] Crim. L. R. 260). But, the weight to be attached to any inconsistency or omission depends on the facts and circumstances of each case. No hard and fast rule could be laid down in that regard. The broad guideline is that discrepancies which do not go to the root of the matter and shake the basic version of the witnesses cannot be annexed with undue importance (see Bharwada Bhoginbhai Hirjibhai v State of Gujarat [1983] AIR 753, 1983 SCR (3) 280)’
[35] The Court of Appeal in Nadim quoted further from Bharwada Bhoginbhai Hirjibhai v State of Gujarat (supra) where the Supreme Court of India remarked
“Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all-important "probabilities-factor" echoes in favour of the version narrated by the witnesses. The reasons are: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen; ........ (3) The powers of observation differ from person to person. What one may notice, another may not. ...... It is unrealistic to expect a witness to be a human tape recorder;”
[36] In my view, the so called inconsistencies and omissions are not on the act of sexual intercourse, the identity of the perpetrator or the consent. In any event consent does not matter in this instance in terms of section 223(2) of the Crimes Decree. Such inconsistencies and omissions as are highlighted in cross-examination are really on peripheral matters and not capable of damaging the overall credibility of the victim. Neither do they go to the root of or shake the prosecution case. Therefore, in my view no reasonable jury directed on those inconsistencies and omissions would have come to a different finding. No substantial miscarriage of justice has occurred. I reject Ground 8.
Ground 9 - That the learned trial judge erred in law in not directing himself and the Assessors on the non corroborated evidence of two witnesses where the two doctors have contradicted statement and the victim have two uncorroborated statements.
[37] While complaining about lack of corroboration the Appellant also joins issue with the trial judge’s direction to the assessors that Doctor Quevara was more experienced than Dr. Atunesh Prakash. The Appellant argues that such a direction may have tipped the scale in favour of the prosecution.
[38] The evidence reveals that Dr. Atunesh Prakash who by then had been only 03 years in the medical profession as a doctor, had examined the complainant on 28 May 20112 and observed her hymen to be intact. However, Dr. Atunesh Prakash had not specifically discounted previous sexual intercourse or penetration. Neither the prosecution nor the defence had posed the question to him whether there could be penetration without necessarily rupturing the hymen or in other words whether the presence of an un-damaged hymen is conclusive evidence of lack of penetration. He had admitted in cross-examination that he had examined only three cases of rape up to that time and that he discussed the matter with Dr. Brian Guevara, a gynaecologist. WPC Tulina had said in evidence that Dr. Atunesh Prakash had advised her to go to Labasa for a second opinion. Accordingly, Dr. Brian Guevara had examined the victim on 30 May 2012 and found her hymen to be not intact and said in evidence that she may have had sex. Dr. Brian had passed out in 2008, been in charge of obstetrics and gynaecology in Labasa Hospital since 2011 and by that time had examined 26 cases related to area of expertise.
[39] In the circumstances to comment to the assessors that Dr. Brian Guevara was more experienced as admitted by the Appellant is factually correct. It could not have favoured the prosecution unfairly as the trial judge had not said anything more and left it to the assessors to decide which doctor to rely on. The assessors as judges of fact were entitled to, if they so desired, to accept the evidence of Dr. Brian Guevara as against that of Dr. Atunesh Prakash. In any event the medical evidence is only of corroborative value and corroboration is no longer required in cases of sexual nature and no warning by the judge of lack of corroboration is also required in terms of section 129 of the Criminal Procedure Decree, 2009 (CPD).
[40] Section 129 of the CPD states ‘Where any person is tried for an offence of a sexual nature, no corroboration of the complainant’s evidence shall be necessary for that person to be convicted; and in any such case the judge or magistrate shall not be required to give any warning to the assessors relating to the absence of corroboration.’
[41] Kean v. StateimiCriminal Appe Appeal No. AAU 95 OF 2008: 13 November 2013 [2013 FJCA 117] the Court of Appeal held ‘In Fiji, assult ction 129 of the Criminal Procedure Decree 2009, a trial judge is no longer requirequired tred to give a standard warning to the assessors where the evidence of a complainant in a trial for an offence of a sexual nature is not corroborated.’
[42] Even before the CPD came into existence the legal position was that corroboration is not the sine qua non for a conviction in a rape case but the rule, which according to the cases had hardened into one of law, was not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge and assessors should be accordingly directed.
[43] Bharwada Bhoginbhai Hirjibhai v State of Gujarat (supra) the Supreme Court of India remarked
‘In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society’
[44] There is no reason why it should be different here and the same logic should not apply in Fiji and hence, in my view, section 129 of the CPD being the legislative response.
[45] Therefore, in the circumstances I am not inclined to uphold Ground 9 and reject the same.
Ground on sentence – That the sentence ordered by the Trial Court is extremely harsh and excessive.
[46] The Appellant admits that the trial judge had not erred in terms of tariff. His main point of contention is that the trial judge had wrongly taken certain matters into consideration as aggravating factors making the sentence harsh and excessive. Those factors are as follows.
(i) The victim the biological daughter of the accused – already embedded in the Information.
(ii) The accused had sexual intercourse with his biological daughter - already embedded in the Information.
(iii) The victim is emotionally distressed and psychologically affected due to this incident – No evidence to support this point.
[47] In Ananda Abey Raj v. The State CAV 0003of 2014: 20 August 2014 [2014 FJSC 12] case His Lordship the Chief Justice while approving the decision in Naisua v. State Crim. App. No. CAV 0010 of 2013: 20 November 2013 ([2013] FJSC 14] reiterated that the Appellate Courts will interfere with a sentence if it is demonstrated that the trial judge made one of the following errors:
(i) Acted upon a wrong principle
(ii) Allowed extraneous or irrelevant matters to guide or affect him;
(iii) Mistook the facts;
(iv) Failed to take into account some relevant considerations.
[48] I agree that the first two factors complained of could not have been considered as aggravating factors because they are part and parcel of the first to third counts in the Amended Information and they could be considered as ‘extraneous or irrelevant’. However, a trial judge is entitled to draw relevant inferences on the mental and emotional suffering of rape victim due to the acts of the Appellant not only from the demeanour of the victim but also from the nature of human psychology. One does not need experts to testify to mental and emotional devastation of a rape victim. Therefore, I do not agree with the third point raised on behalf of the Appellant.
[49] Dr. Anand, J speaking on behalf of the Supreme Court of India had the occasion to say the following in the criminal appeal of The State Of Punjab vs Gurmit Singh & Others 1996 AIR 1393, 1996 SCC (2) 384 where the victim was a 16 year old girl.
‘We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim; a rapist degrades the very soul of the helpless female.’
[50] In Lokesh Mishra v. State of NCT Delhi CRL. A. 768/2010 decided on 12 March 2014 by the High Court of Delhi, Kailash Gambhir, J. said
‘It is appalling to see that rape rears its ugly facade almost every day. 'Rape' is one such dark reality in the Indian Society that devastates a women's soul, shatters her self-respect and for a few, purges their hope to live. It shakes the insight of a woman who once was a 'happy person', and had no clue of being a victim of the said horrifying and nightmarish encounters where the daughter had been raped by none else but her own progenitor. A daughter always looks up to her father as a shield of her dignity and honour which is an intrinsic facet of a family especially of father-daughter relationship. It shocks human conscience when the sanctity of father and daughter relationship is ravaged in such a sordid manner and the protector becomes the violator. In such a case the offence assumes a greater degree of vulnerability which shall not go unpunished. There can never be a graver heinous crime than the father being charged of raping his daughter. It is the gravest sin, where the most platonic relationship is shattered by an extreme pervert and shameful act of nonetheless ne's own fatn father. The moral values of individuals of the society have gone down to such a level that every day we hear similar news which shudders our mind oul. We have become accustomed to saying that females are nare not safe outside the house but in few cases, it is seen that they are not even safe inside their homes, where the epitome of God's beautiful creation, a child is ravished by her own father for his momentary sexual needs and pleasure which is heart-rending and odious.’
[51] In the Supreme Court in Ananda’s case the Chief Justice quoted the following remarks made in State v. AV [2009] FJHC 24: HAC 192.2008: 21 February 2009
‘Rape is the most serious form of sexual assault .... Society cannot condone any form of sexual assaults on children .... Sexual
offenders must be deterred from committing this kind of offences.’
‘The judge correctly identified the tariff for rape of a child as being between 10-16 years imprisonment (Mutch v. State Cr.
App. AAU 0060/99, Mani v. State Cr. App. No HAA 0053/021, State v. Saitava Cr. Case No HAC 10/07, State v. Tony Cr. App. No. HAA
003/08).’
‘This child suffered greatly and the punishment must reflect society’s abhorrence of such prolonged ill treatment and
abuse...’
[52] The Supreme Court further set out in Ananda some of the aggravating factors taken into consideration by the trial judge as
(i) The Petitioner was complainant’s step father who should have protected her. Instead he breached the trust expected of him,
and the breach was gross.
(ii) The rape offence took place continuously over a long period of time.
(iii) The frequency of crimes against children in Fiji, and therefore the need for deterrence.
and endorsed the following remarks of the Court of Appeal and affirmed the sentence of 16 years imprisonment.
‘Rapes of juveniles (under the age of 18 years) must attract a sentence of at least 10 years and the accepted range of sentence
is between 10 and 16 years ...’
[53] In Drotini v. The State Criminal Appeal No. AAU0001 of 2005S:24 March 2006 ([2006] FJCA 26) the Court of Appeal said
‘Cases of rape by fathers or step father appear before the courts in Fiji far too frequently and, in such cases, the starting point should be increased to 10 years. Where there are further aggravating circumstances beyond those basis circumstances, such as repeated sexual molestation of any nature, ...... there should be substantial increases above that starting point.
and endorsed the following words of the trial judge on the sentence and confirmed the sentence of 11 years of imprisonment.
‘There were terrible and horrific acts by a father on a girl of extra tender years. .... Instead of giving her love and protection, you made her the target of your lustful desires causing her not only physical pain but unimaginable mental trauma. You used your authority not to protect her but to violate her. You have broken all the rules not only of a father daughter relationship but of civilised human society.”
‘By not pleading guilty... you made the girl go through a trial having to repeat and relive those painful vile moments again.’
[54] Now the question is whether this court should interfere with the sentence imposed on the appellant by the Learned High Court Judge on account of the aforesaid two matters having been treated as aggravating factors. I do not think so. Saleem Marsoof J. in the Supreme Court said in Quari v State Criminal Petition No. CAV 24 of 2014 decided on 20 August 2015; [2015] FJSC 15
“In my considered view, it is precisely because of the complexity of the sentencing process and the variability of the circumstances of each case that judges are given by the Sentencing and Penalties Decree a broad discretion to determine sentence. In most instances there is no single correct penalty but a range within which a sentence may be regarded as appropriate, hence mathematical precision is not insisted upon. But this does not mean that proportionality, a mathematical concept, has no role to play in determining an appropriate sentence.”
[55] I believe that the ultimate object of the Sentencing and Penalties Decree, 2009 coupled with the judicial guidelines is to
help judges arrive at a just and fair sentence proportionate to the gravity of the offence for an accused considering all the circumstances
of the case while maintaining an acceptable decree of uniformity and consistency. It is not to insist on a straightjacket approach
to sentencing. Mathematical accuracy is not what is expected in sentencing.
[56] In Koroicakau v The State Criminal Appeal No. CA0006 of 2005S decided on 04 May 2006; [2006] FJSC 5 the Supreme Court observed
“When a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step in the reasoning process that
must be considered. Different judges may start from slightly different starting points and give somewhat different weight to particular
facts of aggravation or mitigation, yet still arrive at or close to the same sentence. That is what has occurred here, and no error
is disclosed in either the original sentencing or appeal process”
[57] In R v Radich/b> [ NZL] NZLR 86 th86 the New Zealand Criminal Court of Appeal said
“... one of the main purposes of punishm.. isrotect the public from the commission of such crimes by making it clear to the ofhe offendefender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment.”
“If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences.”
“The Court of Appeal , in considering an application for reduction of sentence, must be reasonably satisfied that the sentence is manifestly excessive or wrong in principle, or there must be exceptional circumstances calling for its revision.
[58] R v Good/u> R v AEM[2002CCASWCCA 58 are8 are subsequent cases that had followed the principle in R v Radich (su
[59] Having considered this ground of appeal in the light of the above decisions I am convinced that there is no justifiable reason for this Court to interfere with the sentence imposed by the Learned High Court Judge. I have also reminded myself of the following observations.
[60] In Veen v The Queen (No > [1988] HCA 14; [1988] 164 CLR 465 Ma65 Mason CJ, Brennan, Dawson and Toohey JJ at 476:
“... sentencing is not a purely logical exercise, and the troublesome nature e senng diion arin arises ises in large measure from unavoidable difficulty in giving weight to each each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”
[61] In R v Engert [ 84 ] Crim Crim R 67 Gleeson CJ said at 68 after discussing Veen v The Queen (No 2) (su
“Ant consideration will show that the interplay of thof the cone considerations relevant to sentencing may be complex and on occasion even inte. ..>
It isIt is ther therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.”
[62] In Viliame Tamani v. The State Criminal Appeal No.AAU0025 of 03S: 4 March 2005 where the Appellant was charged with two offences in indecent assault, one of rape and six of incest over a period January 1995 to June 1997 and inter alia was sentenced to 11 years on the count of rape the Court of Appeal said “ This is an extremely serious case. The learned judge correctly assessed the case when considering the sentence..... We are satisfied the sentence is correct.’
[63] Therefore, considering all the circumstances of the case I am not inclined to interfere with the sentence imposed on the Appellant as one of the purposes of sentencing is to deter offenders or other persons from committing same or similar offences. I think even when the two matters wrongly considered as aggravating factors are disregarded still the sentence of 11 years imprisonment with a non parole period of 9 years is fully justified. The sentence is not excessive. There are no exceptional circumstances for this Court to revise it. The sentences have not caused any substantial miscarriage of justice to the Appellant and I reject this ground of appeal.
[64] Therefore I would propose that the appeal be dismissed and the conviction and sentence are affirmed.
Rajasinghe, JA
[62] I agree with His Lordship’s findings and reasoning in the Judgment.
Orders of the Court are:
Hon. Mr. Justice William Calanchini
PRESIDENT, COURT OF APPEAL
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
Hon. Mr. Justice T. Rajasinghe
JUSTICE OF APPEAL
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