Nadan v State [2019] FJCA 29; AAU0146.2015 (7 March 2019)

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

CRIMINAL APPEAL NO.AAU 0146 of 2015

[High Court Criminal Case No. HAC 113 of 2015)

BETWEEN:

VISHWA NADAN

Appellant

AND : STATE

Respondent

Coram : Prematilaka, JA

Fernando, JA

Nawana, JA

Counsel : Mr. Tunidau, K for the Appellant

Ms. Madanavosa, P for the Respondent

Date of Hearing : 15 February 2019

Date of Judgment : 07 March 2019

JUDGMENT

Prematilaka, JA

[1] This appeal arises from the conviction of the Appellant on three counts of rape under section 149 and 150 of the Penal Code by the Magistrates Court of Rakiraki but sentenced by the High Court pursuant to section 190(1)(b) of the Criminal Procedure Act, 2009. All offences are alleged to have been committed at Wairuku, Rakiraki in the Western Division against P (name withheld).

[2] The three counts of rape allege that the Appellant had carnal knowledge of P (name withheld) without her consent between 01 October 2004 and 30 November 2004, 01 April 2005 and 31 May 2005 and 01 August 2006 and 30 September 2006 respectively. All are representative counts.

[3] After trial, the Appellant was found guilty of all counts on 24 June 2015 and transferred by the Learned Magistrates to the High Court for sentencing under section 190(1)(b) of the Criminal Procedure Act. Both the State and the Appellant had filed submissions as regards the sentence and the Learned High Court Judge had on 08 October 2015 imposed 14 years of imprisonment with a non-parole period of 12 years (i.e. the mandatory period to be served before the Appellant becomes eligible for parole) on all counts to run concurrently.

Preliminary observations

[4] The Appellant had filed a leave to appeal application against the conviction and sentence and a single Judge of this Court had granted leave to appeal in respect of all four (04) grounds of appeal against sentence. Both parties had filed written submissions at the leave stage and prior to the hearing of the appeal before the Full Court. The Appellant by his leave to appeal application had sought leave against conviction and sentence. However, the written submissions filed at the leave stage had covered only the conviction and the leave ruling too had dealt with only the grounds of appeal against the conviction. There is no indication that his application for leave against the sentence had been abandoned, though original grounds 5, 6 and 7 had been abandoned at the leave stage. The Appellant had reiterated his ground of appeal against the sentence on the basis that in all circumstances it is harsh and excessive in his written submissions filed for the Full Court hearing. Fresh written submissions of the State have dealt with only the conviction. Since the ground of appeal against sentence had not been abandoned but not dealt with by the single Judge, this Court would consider that as well.

Grounds of Appeal

[5] Therefore, the grounds of appeal that would be considered by this Court are as follows.

‘1.The learned Judge erred in law and in fact by failing to enquire and/or properly enquire into the circumstances of the case pursuant to section 190(3) of the Criminal Procedure Decree 2009.

2. The trial Magistrates and learned Judge erred in law and in fact in convicting the appellant in the first count of rape when in cross-examination and noted at item, 10, paragraph 5 of the judgment, the trial Magistrates said, “She agreed that there was no sex in 2004 and accused only hugged her from the back. She was scared of accused hugging and kissing her.”

3. The trial Magistrates and learned Judge erred in law and in fact by failing to consider upon the admission in cross-examination by the victim of the fact that there was no sex in 2004:

i. That the admission proved her allegation in the first count as false and lie;

ii. That the summary of the medical evidence and other prosecution witnesses at item 25 of the trial Magistrates’s judgment contradicted the admission by the4 victim of her not being raped in 2004;

iii. That the admission by the victim of her not being raped in 2004 casts a grave and reasonable doubt on the credibility of her evidence in counts 2 and 3 respectively.

4. The trial Magistrates and learned Judge erred in law and in fact by stating at item 22 of the judgment that the victim had “no reason as per the evidence to concoct the existing allegation against the accused” and item 23 by stating “I doubt the complainant (PW3) had fabricated the allegation against accused as there was no basis for her to do so in relation to the evidence” when this assessment contradicted the admission of the victim that there was no sex and no rape in 2004.]

5. The sentences given are in all circumstances of the case harsh and excessive.’

Ground 1

‘The learned Judge erred in law and in fact by failing to enquire and/or properly enquire into the circumstances of the case pursuant to section 190(3) of the Criminal Procedure Decree 2009.’

[6] If the complaint of the Appellant under this ground of appeal may be succinctly stated, it would be that section 190(3) of the Criminal Procedure Act necessarily requires a detailed analysis of the evidence led in the Magistrates Court and a meticulous and thorough evaluation of the judgment of the Magistrates by the High Court before sentencing an accused. It is the Appellant’s position that the learned High Court Judge’s manner of dealing with this requirement in paragraphs 3 and 8 of the sentencing judgment was inadequate and falls short of what is required under section 190(3) and therefore the learned Judge had erred in law.

[7] Section 190(3) of the Criminal Procedure Act states

‘(3) The High Court shall enquire into the circumstances of the case and may deal with the person in any manner in which the person could be dealt with if the person had been convicted by the High Court.’(emphasis added)

[8] It is the phrase ‘enquire into the circumstances of the case’ in section 190(3) that is the bone of contention under the first ground of appeal in as much as the nature and scope of the enquiry has not been spelt out in greater detail. The Appellant argues that it envisages a fully-fledged examination of the merits of the conviction to such an extent that the High Court should first be satisfied that the conviction is not erroneous. According to the Appellant, it is then and only then that the High Court could proceed to sentence an accused.

[9] The Appellant relies on the cases of State v Prasad HAM0034X of 2004S:24 June 2004 [2004] FJHC 217 and State v Prasad HAC75 of 2017: 01 August 2017 [2017] FJHC 598 that had followed the former, in support of the argument advanced by him.
[10] In State v Prasad (2004) where the accused had been transferred to the High Court for sentencing under the Criminal Procedure Code, the High Court had discovered certain irregularities on record and therefore, found the convictions erroneous. The High Court had then proceeded to quash the convictions and ordered a re-trial by using its revisionary powers vested in terms of section 325(1) of the Criminal Procedure Code (which is similar to section 262(1) of the Criminal Procedure Act, 2009). In State v Prasad (2017) also the High Court, dealing with an accused convicted in the Magistrates Court but transferred for sentence, had set aside the conviction under section 256(2)(a) of the Criminal Procedure Act by exercising revisionary powers vested in the High Court by section 262 of the Criminal Procedure Act.
[11] Unfortunately, in State v Prasad (2004) the High Court had not analysed section 222(2)(a) of the Criminal Procedure Code [which is similar to section 190(3) of the Criminal Procedure Act, 2009] and in State v Prasad (2017) the High Court had not analysed section 190(3) of the Criminal Procedure Act, 2009 in order to decide the nature and scope of the enquiry that should be undertaken by the High Court in sentencing an accused transferred from the Magistrates Court under section 190(1)(b).

[12] In my view, the phrase ‘enquire into the circumstances of the case’ encompasses an inquiry or examination essential to the matter of sentence on the accused brought before the High Court upon a conviction in the Magistrates Court. The words ‘...as if the person had been convicted by the High Court.’ in section 190(3) suggests that an accused so transferred for sentencing by the High Court should be deemed to be a person convicted by the High Court. Therefore, the High Court deals with such a person as a person convicted by the High Court and not by the Magistrates Court. Needless to say, that the High Court cannot look into the correctness, legality or propriety of its own findings and the regularity of its own proceedings in the exercise of its appellate or revisionary powers.

[13] Section 190(4) makes this position clearer. It states

‘A person transferred to the High Court under this section has the same right of appeal to the Court of Appeal as if the person had been convicted and sentenced by the High Court.’

[14] Thus, the appellate powers with regard to a person transferred for sentencing under section 190(1)(b) of the Criminal Procedure Act is vested in the Court of Appeal. Section 21 of the Court of Appeal Act inter alia confers appellate jurisdiction on the Court of Appeal regarding a person convicted and sentenced or acquitted before the High Court.

[15] Revisionary powers of the High Court to call for records are set out in section 260(1) of the Criminal Procedure Act as follows.

‘260 — (1) The High Court may call for and examine the record of any criminal proceedings before any Magistrates Court for the purpose of satisfying itself as to —

(a) the correctness, legality or propriety of any finding, sentence or order recorded or passed; and

(b) the regularity of any proceedings of any Magistrates Court.

(2) The High Court shall take action under sub-section (1) upon the receipt of a report under the hand of the Chief Justice which requests that such action be taken.

[16] Section 262 of the Criminal Procedure Code states

‘(1) In the case of any proceedings in a Magistrates Court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may —

(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by section 256 and 257; and

(b) in the case of any order other than an order of acquittal, alter or reverse such order.’

[17] In State v Prasad (2004) and State v Prasad (2017) the High Court had proceeded on the premise that the record of the Magistrates Court had come to its knowledge in order to exercise revisionary powers on the conviction of the accused transferred from the Magistrates Court for sentencing. However, in both judgments the High Court had not considered the question whether, once a transfer of an accused is made under section 190(1)(b) for greater punishment to the High Court, in view of the fact that he has to be dealt with as if he had been convicted by the High Court, the proceedings or conviction or any other order of the Magistrates Court could any longer be considered as those of the Magistrates Court. As pointed out above, both decisions have also not considered the nature and scope of section 190(3) of the Criminal Procedure Act.

[18] I am of the view, that the conviction of an accused is not just an event but the culmination of a process. Therefore, when a person has to be dealt with as if he has been convicted by the High Court, one cannot take his conviction in isolation but the whole process or proceedings leading to the conviction should be treated as if they had been taken before the High Court. Thus, when the High Court sentences an accused transferred from the Magistrates Court for greater punishment it is as if, for all purposes, he has been convicted by the High Court and the Magistrates Court becomes functus unless the High Court acting under section 190(5) remits the accused to be dealt with by Magistrates Court which then resumes jurisdiction with regard to the case.

[19] Therefore, in my view the revisionary powers of the High Court under section 260 and 262 of the Criminal Procedure Act are not applicable or cannot be invoked when the High Court becomes vested with jurisdiction in respect of an accused transferred by the Magistrates Court under section 190(1)(b) of the Criminal Procedure Act for greater punishment, for section 260 and 262 allow the High Court to deal with the record of any proceedings in the Magistrates Court whether the High Court has called for it or whether it has been reported to the High Court for orders or whether it has otherwise come to its knowledge. Once section 190(1)(b) is invoked such record of proceedings including the conviction of the accused is and should be deemed to be those of the High Court and the High Court cannot, understandably, exercise revisionary jurisdiction on its own proceedings including the conviction of the accused.

[20] Therefore, with due respect, I am not inclined to follow State v Prasad (2004) and State v Prasad (2017).

[21] Thus, I hold that the nature and scope of the enquiry expected to be undertaken by the High Court under section 190(3) of the Criminal Procedure Act into the circumstances of the case in respect of an accused transferred for greater punishment by the Magistrates Court, should be confined to such circumstances of the case, including those mentioned in section 190(2), in so far as they relate only to the sentence. In my view, the legislature has not expected such enquiry to be extended or enlarged to an examination of the correctness, legality or propriety of the conviction, for any accused aggrieved by the conviction and the sentence is entitled to canvass both or one of them in the Court of Appeal as provided for in section 190(4) of the Criminal Procedure Act read with section 21(1) of the Court of Appeal Act. If not, such an exercise by the High Court would amount to usurpation of the appellate jurisdiction of the Court of Appeal.

[22] I shall now turn to the High Court Judge’s enquiry into the circumstances of the case before proceeding to pronounce the sentence which can be found in the following paragraphs of the impugned judgment.

‘3. It was proved at the trial in the Magistrates courts that you have committed these crimes on the victim, who is the step-daughter of your brother at your family home. You came to the room of the victim when she was removing her school uniform and had forceful sexual intercourse with her therein. You then threatened the victim that you will chase her family away from the house and kill her if she tells this incident to anyone. Since then you had been continuously having sexual intercourse with the victim whenever you found an opportunity for that. The victim was 13 years old when the first count of rape was committed on her.’

‘8. The victim is the step-daughter of your brother and lived with her family at your family house, where you also lived with your family. You abused the trust and confidence she has for you as an elderly family member in her own domestic family environment. You started doing this horrific crime on the victim when she was 13 years old. She stated in her evidence that she looked at you as a fatherly figure. However, you, instead of protecting her with love and affection, you used her vulnerability in her childhood as a weapon to satisfy your reprehensible lust of sexual gratification. You dined her childhood, and natural growth with the nature by committing this crime. The victim impact report reveals that she had to abandon her school education and was sidelined by many of her relatives subsequent to this incident. You deceitfully plot this crime on the victim by using your position in the domestic environment. While doing such, you have threatened her that you will chase her family out of the house and kill her if she informs this shameful act to anyone, making her helpless against this act. I consider these reasons as aggravating factors of this offence.

[23] The Learned High Court Judge had also considered the aggravating and mitigating circumstances and stated the law on tariff for child rape correctly in the sentencing order. He had described the general nature of the case in the following words.

‘4. This is a case of an elderly family member, using a juvenile within the domestic family environment for his surrogate sexual gratification. Crimes in this nature have been condemned and deprecated by many societies as it is not only against the acceptable social norms and values, but also against the acceptable human behaviours.’

[24] I am convinced that the Learned Judge had adequately enquired into the circumstances of the case according to the nature and scope envisaged in section 190(3) of the Criminal Procedure Act and considered other relevant factors before pronouncing the sentence. Accordingly, the first ground of appeal is rejected.

Ground 2 and 3

‘2. The trial Magistrates and learned Judge erred in law and in fact in convicting the appellant in the first count of rape when in cross-examination and noted at item, 10, paragraph 5 of the judgment, the trial Magistrates said, “She agreed that there was no sex in 2004 and accused only hugged her from the back. She was scared of accused hugging and kissing her.’

‘3. The trial Magistrates and learned Judge erred in law and in fact by failing to consider upon the admission in cross-examination by the victim of the fact that there was no sex in 2004:

i. That the admission proved her allegation in the first count as false and lie;

ii. That the summary of the medical evidence and other prosecution witnesses at item 25 of the trial Magistrates’s judgment contradicted the admission by the4 victim of her not being raped in 2004;

iii. That the admission by the victim of her not being raped in 2004 casts a grave and reasonable doubt on the credibility of her evidence in counts 2 and 3 respectively.’

[25] It is convenient to consider grounds 2 and 3 together. The complaint of the Appellant based on these two grounds, revolves around the allegation pertaining to the first count relating to the first act of alleged rape in 2004. By extension, the Appellant argues that because the complainant cannot be believed with regard to the first allegation of rape, her testimony on the other two counts on incidents of rape allegedly committed by the Appellant in 2005 and 2006 too cannot be acted upon.

[26] I shall now examine the complaint’s evidence on count one. The gist of her evidence in examination-in-chief is that when she was in class 8 and 13 years of age, the Appellant, her father’s brother had started displaying a weird behavior towards her in that he used to hold her from behind when she changed her clothes saying that he loved her. In October/November 2004, when the complainant received her examination results, the appellant had given her a bracelet and a letter expressing his love. On that day when she was changing her uniform the Appellant had grabbed her from behind, pushed her onto the bed, removed her cloths, sucked her breasts, kissed all over her body and her thighs, licked her vagina and inserted his penis into the vagina. The complainant had stated that the penetration was very painful. According to the complainant, though she had protested, the Appellant paid no heed but had threatened to remove her family out of home and to kill her. She had got frightened and not complained to anyone.

[27] The questions and her answers under cross-examination are as follows

‘Q41: What happened that day you received exam results?

A: Accused gave bracelet and told me. He loved me that why he gave me bracelet.

Q42: Did Vishwa do anything?

A: He held me from back, I told him I didn’t want. Any of this and he went away.

Q43: Nothing else happened, after that he left?

A: I was changing clothes in my room; he came from back and held me. He pushed me on the bed and kissed me and left.

Q67: In 2004 accused only hugged you from back?

A: Yes.

Q68: There was no sex in 2004, you agree?

A: Yes

Q71: How did you feel towards Vishwa (accused) in 2004

A: Yes, scared of him & hugging me.

Q91: You were never raped in 2004, 2005, 2006?

A: I got raped.

Q138: In 2004 accused penis never entered you

A: He did.’

[28] As can be seen from the above evidence, the complainant has on one occasion admitted under cross-examination that there was ‘no sex’ in 2004. Yet, she had under cross-examination itself had later reiterated her evidence under examination-in-chief that she got raped and the appellant’s penis entered her in 2004. It is the complainant’s answers to questions 67 and 68 that have formed the basis of the Learned Magistrate’s statement in the impugned judgment that the complainant had agreed that there was no sex in 2004 and he only hugged her from behind.

[29] The Learned Magistrates had dealt with this aspect of the complainant’s evidence in the judgment as follows.

‘17. I further bear in mind that this is an old case. The allegation was alleged to have occurred from 2004, 2005 and 2006. Hence there are bound to be contradictions and discrepancies in earlier out of court statements when contrasted with a witness testimony in court. That is understandable due to the inherent weakness concerning human memory. The existence of discrepancies or contradictions doesn’t mean that a witness is lying........... Nonetheless all the evidence of the witness must be considered in totality including their demeanour before deciding on whether their evidence is credible or otherwise.’

’22. ..... the alleged incident occurred between some 9-11 years back. Hence one cannot expect the complainant who was also a juvenile at that time to recollect in exact detail (of) what occurred. When observing her demeanour I found that she was unsophisticated and unassuming when relieving her past ordeal. She maintained her version of events that (the) accused had forceful sexual intercourse with her in 2004, 2005 and 2006. She remained firm and never waived from her allegation....’

[30] The complainant had revealed the acts of rape to one of her trusted aunts in 2008 who had testified in her evidence that in 2008 the complainant had told her that the Appellant had engaged in forceful sex with her. She and her husband, who is the Appellant’s elder brother, had reported the matter to the police. Although the complainant had admitted under cross-examination that she had not told the police that she revealed to her aunt of the Appellant having engaged in sex with her, no such question had been put to her aunt Alisha Singh in cross-examination. Further, having examined the relevant portion of the complainant’s statement to the police, I find that she had been confronted with a carefully chosen part of her sentence.

[31] The often quoted decision of the Indian Supreme Court in Bharwada Bhoginbhai Hirjibhai v State of Gujarat [1983] AIR 753, 1983 SCR (3) 280) (an appeal from a conviction for rape) may help to explain why the complainant on a single occasion under cross-examination had stated that there was no sex in 2004 but the Appellant only hugged her from behind and also why the Magistrates was not wrong in not attaching undue importance to that piece of evidence.

“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............... 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; (2) Ordinarily, it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details;........ (4) It is unrealistic to expect a witness to be a human tape recorder ...........(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts; get confused regarding sequence of events, or fill up details from imagination on the spur of moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish, or being disbelieved, though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defense mechanism activated on the spur of the moment.”( emphasis added)

[32] Therefore, I am not inclined to uphold the Appellant’s argument that the Learned Magistrates had erred in law and in fact in convicting the appellant for the first count of rape despite the complainant’s evidence once under cross-examination that there was no sex in 2004 but the accused only hugged her from the back. Under cross-examination itself the complainant had corrected herself on her earlier evidence. The Learned Magistrate was in the best position to see the demeanour of the complainant and had seen no reason to disbelieve her testimony.

[33] In Sahib v State AAU0018u of 87s: 27 November 1992 [1992] FJCA 24, the Court of Appeal stated

‘It has been stated many times that the trial Court has the considerable advantage of having seen and heard the witnesses. It was in a better position to assess credibility and weight and we should not lightly interfere. There was undoubtedly evidence before the Court that, if accepted, would support such verdicts.’

[34] The Appellant also argues that the doctor who examined the complainant in 2008 had stated under the history as related by the complainant in the Medical Examination Form that inter alia there had been sexual penetration on her of one episode and at other times the Appellant had just inserted his fingers. When confronted with this position under cross-examination the complainant had replied as follows.
‘Q62: recall going to the Doctor?

A: Yes.

Q63: did you tell anything to the Doctor?

A: Yes.

Q64: you told Doctor that sex only happened once?

A: Can’t recall.

Q65: I suggest that’s what you told Doctor?

A: Yes.

Q66: Penis only went into your vagina once?

A: Yes.

Q126: you told doctor that penis only went in once?

A: I told Doctor that first two times penis went in half way. 3^rd time penis went in fully. That what I told Doctor.’

[35] Keeping in mind that the complainant was 13-15 years of age when the three incidents of rape had allegedly happened and her maturity and ability to understand the exact nature and the extent of the penetration of her vagina, one cannot consider the above answers as casting a reasonable doubt of the truthfulness of her testimony. It appears that what she had meant by one instance of penetration was the instance of full penetration and not half penetration on the other two instances. In any event, she had not been cross-examined on the insertion of fingers as recorded in the Medical Examination Form (MEF). Nor had the doctor been cross-examined on the short history recorded in the MEF. Therefore, technically, the short history remains hearsay evidence. According to the doctor’s evidence the fact that the hymen was not visible shows that there could have been penile penetration. In any event, to complete the offence of rape, penetration to any extent is sufficient.

[36] The Appellant has also attempted to compare the complainant’s evidence given at the abortive trial with her evidence under oath at the second trial. Yet, no questions were put to her based on her earlier testimony and no challenge was mounted on that basis at the second trial. Therefore, what she had stated or failed to state at the abortive trial is immaterial or irrelevant as far the second trial is concerned.

[37] Therefore, I conclude that the ground 2 and 3 of the appeal also should also be rejected.

Ground 4

‘4. The trial Magistrates and learned Judge erred in law and in fact by stating at item 22 of the judgment that the victim had “no reason as per the evidence to concoct the existing allegation against the accused” and item 23 by stating “I doubt the complainant (PW3) had fabricated the allegation against accused as there was no basis for her to do so in relation to the evidence” when this assessment contradicted the admission of the victim that there was no sex and no rape in 2004.’

[38] The fourth ground of appeal is in a way connected to grounds 2 and 3 already dealt with. The two statements in the judgment which the Appellant complains of, is on the lack of a sinister motive on the part of the complainant. The Appellant had suggested to the complainant in cross-examination that she had implicated the Appellant in acts of rape due to her mother’s beating. It is apt to quote the proceedings to understand the weight of the Appellant’s complaint.

‘Q95: You only said you were raped because your mother was beating you up that day due to some bracelet you had?

A: No. Vishwa sent bracelet to me and my mum got hold of bracelet and beat me and asked me where I got it. I told her Vishwa gave it. Then my uncle came up stop beating.

Q152: You only talked about rape as your mother beat you up?

A: No.

[39] I have perused the entirety of the complainant’s evidence and put the above suggestions in the context of the totality of her testimony, but I cannot fathom as to why the complainant had to feel compelled to implicate the Appellant in a false charge of rape due to the incident relating the bracelet. The complainant had come out with the truth as to where she had got the bracelet from, to the mother and she had no compulsion to give a further explanation, leave aside implicating the Appellant.

[40] In the circumstances, I do not find any merit in the Appellant’s complaint under appeal ground 4 which stands rejected.

[41] Section 23(1)(a) of the Court of Appeal Act sets out the appellate powers of this Court.

"23-(1) The Court of Appeal -

(a) on any such appeal against conviction shall allow the appeal if they think the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the Court before whom the appellant was convicted should be set aside on the grounds of a wrong decision of any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal."

[42] As said in Sahib, having considered the evidence against the Appellant as a whole, I cannot say that the conviction is unreasonable. There is clearly evidence on which the conviction could be based. Neither can it be said that the Learned Magistrate had erred in any question of law. After reviewing all the matters brought to our attention at the hearing including the alleged discrepancies in the evidence of the complainant, the medical evidence and all other witnesses I do not think that here is a miscarriage of justice.

Ground 5

‘The sentences given are in all circumstances of the case harsh and excessive.’

[43] The Learned High Court Judge had set out the purpose of the sentence in the following terms.

‘6. Having considered the serious nature of this offence, I now turn my attention to consider the purpose of this sentence. The main purpose of this sentence is founded on the principle of deterrence. It is a responsibility of the court to deter offenders or other persons from committing offences of the same or similar nature and protect the community from offenders of this nature. A harsh and long custodial sentence is inevitable for the offences of this nature in order to demonstrate the gravity of the offence and also reflect that the civilised society denounce such crimes without any reservation.’

[44] The Learned High Court Judge had taken the starting point at 12 years of imprisonment based on the tariff set out in Raj v State CAV0003 of 2014:20 August 2014 [2014] FJSC 12]. The Court of Appeal decided that the accepted range of sentence for rape of juveniles (under the age of 18 years) is 10-16 years [vide Raj v State AAU0038 of 2010: 05 March 2014 [2014] FJCA 18]. The Supreme Court in Raj v State CAV0003 of 2014:20 August 2014 [2014] FJSC 12] confirmed that the tariff for rape of a child is between 10-16 years. The starting point picked by the High Court Judge was in keeping with Koroivuki v State AAU0018 of 2010: 05 March 2013 [2013] FJCA 15 where it was held that as a good practice the starting point should be picked from the lower or middle range of the tariff.

[45] The Learned High Court Judge had set out the aggravating factors in paragraph 08 of the sentencing order as quoted above and added 03 years. On account of the mitigating factors set out as follows, the Learned Judge had reduced 01 year to arrive at the head sentence of 14 years with a non-parole period of 12 years.

‘9. I now turn onto the mitigation factors. The learned counsel for the accused submitted in her mitigation submission that you are 51 years old. You have five children, two of them are with your wife and two of them live with you as the other one is married. The counsel submitted that the children need your support. However, Hon Chief Justice Gate in Raj v State [2014] FJSC 12; CAV0003.2014 (20 August 2014) held that the accused person's responsibility towards his family has little mitigatory value.

10. You are a first offender, which I consider in favour of you in the sentencing. You have been in remand for three months and 14 days prior to this sentencing.’

[46] In my view, where the accused has committed more than a single act of rape over a period of time, whether he could be treated as a first offender is open to debate. Nevertheless, there is no error in the impugned sentence within the guidelines for challenging a sentence set out in House v The King [1936] HCA 40; (1936) 55 CLR 499), Bae v State AAU0015u of 98s: 26 February 1999 [1999] FJCA 21 and approved by the Supreme Court in Naisua v State CAV0010 of 2013: 20 November 2013 [2013] FJSC 14 that requires the intervention of this Court.

[47] Therefore, I reject this ground of appeal against the sentence.

[48] I conclude that, therefore, the appeal should stand dismissed and the conviction and sentences be affirmed.

Fernando, JA

[49] I agree with the reasoning and conclusions of Prematilaka, JA.

Nawana, JA

[50] I have read the judgment in draft of Prematilaka, JA. I agree with the conclusion that the conviction and the sentence should be affirmed and the appeal should stand dismissed. However, I am not in agreement with Prematilaka, JA, in regard to the reasoning on the power of a High Court Judge under Section 190 of the Criminal Procedure Act, 2009 (the Act).

[51] Facts of the case are clearly set-out in the judgment of Prematilaka, JA. Hence, I do not propose to repeat them. I would, instead, express my views on Section 190 of the Act, which empowers the High Court to impose a greater a sentence than a Magistrate could in a case where an accused-person is tried, convicted and transferred by a Magistrate to the High Court for sentencing.

[52] Section 190 (3) of the Act, specifically requires the sentencing High Court Judge to enquire into the circumstances of the case [to] deal with the person in any manner in which the person could be dealt with if the person had been convicted and sentenced by the High Court.

[53] The sentencing Judge, upon receipt of the case transferred by the Magistrate for sentencing under Section 190 (1), appears to have sufficiently enquired into the circumstances of the case, when one considers his reasoning for the imposition of twelve-year mandatory minimum period of imprisonment as the sentence in respect of each of three counts of rape on a girl of 13 years of age, to run concurrently

[54] In my view, ‘...circumstances of the case...’, as opposed to the ‘circumstances warranting a greater sentence’, necessarily encompasses all the matters in the case including those of the correctness of the charge; the propriety of the proceedings; and, the resultant conviction by the Magistrate. All those matters are to be enquired into by a judge of the High Court before a sentence is imposed in a case transferred by the Magistrate.

[55] The High Court, which has been vested with supervisory jurisdiction over the Magistrate’s Court, is not expected under the law, especially under the provisions of the Act; or, under its preceding legislation, to impose a sentence on a convicted-accused person mechanically without being satisfied itself with the correctness or the propriety of the conviction. A legally valid conviction, after all, is the condition precedent or sine qua non for imposition of a legally valid sentence.

[56] When the section states that an accused-person has to be dealt with in a manner as if the accused-person had been convicted by the High Court, it presupposes the judicial accountability on the part of the High Court Judge. That is because, in the exercise of the ordinary jurisdiction of the High Court, a Judge is essentially required to satisfy himself that all requirements have been fulfilled before a conviction is entered. In similar vein, I am of the view that a Judge of the High Court should satisfy, as a condition precedent, that the conviction by the Magistrate is lawfully entered and it has got qualified to receive a sentence at the instance of the High Court under Section 190 of the Criminal Procedure Act, 2009.

[57] In this case before us, the learned sentencing High Court Judge had not observed anything legally objectionable in the conviction by the Magistrate in the process of his enquiry into the circumstances of the case. But, that could not always be the case, as could be seen in the cases of State v Prasad (2004) per Judge Shameem; and, State v Prasad (2017) per Judge Aluthge, as referred to by my brother, where certain fallacies of magisterial proceedings were observed in the processes of enquiry into the circumstances of the case by High Court Judges.

[58] I am, therefore, inclined to agree with the approach adopted in those two cases as it is not, in my view, obnoxious to the provisions of the criminal procedure. If such an approach is not permitted, the resultant position would be that a High Court Judge is required to impose the sentence mechanically as a matter of course whenever a case is transferred to the High Court for the imposition of a sentence. This would create an undesirable and impermissible fetter on the exercise of the judicial power of a High Court Judge. Its outcome, in my view, would lead to an undesirable situation, which is not the expectation of Section 190 of the Act or its preceding legislations.

[59] For the above reasons, I respectfully disagree with the interpretation of Prematilaka, JA, as regards Section 190 (3) of the Criminal Procedure Act, 2009.

The Orders of the Court:

1. Appeal is dismissed.
2. Conviction and sentence are affirmed.
   

Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL

Hon. Mr. Justice A. Fernando

JUSTICE OF APPEAL

Hon. Mr. Justice P. Nawana

JUSTICE OF APPEAL