Palani v State [2021] FJCA 244; AAU111.2020 (16 December 2021)

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

CRIMINAL APPEAL NO.AAU 111 of 2020

[In the High Court at Lautoka Case No. HAC 145 of 2017]

BETWEEN:
ALFRED AJAY PALANI

Appellant

AND:
STATE

Respondent

Coram: Prematilaka, ARJA

Counsel: Mr. S. P. Gosai for the Appellant
: Mr. L. J. Burney for the Respondent

Date of Hearing: 15 December 2021

Date of Ruling: 16 December 2021

RULING

[1] The appellant had been indicted in the High Court at Lautoka on one count of rape contrary to section 207 (1) and (2) (a) of the Crimes Act, 2009 and one count of indecent assault contrary to section 212 (1) of the Crimes Act, 2009 committed on 31 March 2015 at Toko, Tavua in the Western Division.

[2] The information read as follows:

‘FIRST COUNT

Statement of Offence

RAPE: Contrary to section 207 (1) and 2 (a) of the Crimes Act 2009.

Particulars of Offence

ALFRED AJAY PALANI , on the 31st #160;day of March, 2015, at Toko, Tavua in the Western Division, had carnal knowledge of “AL” without the said “AL’s” consent.

SECOUNT
<
b>
Statement of Offf Offence

INDECENT ASSAULT: Contrary to section 212(1) of the Crimes Act 2009.

Particulars of Offence

ALFRED AJAY PALANI between thep>st&#up> day of December, 2014the 24he 24^th day of ber, 2014 at Toko, Tko, Tavua in the Western Division, unlawfully and indecently touched the breasts of “AL” on top of her clothes, without the R’s consent.sent.’

[3] At the end ofnd of the summing-up, the assessors had unanimously opined that the appellant was guilty of both charges. The learned trial judge had agreed with the assessors’ opinion, convicted the appellant and sentenced him on 18 August 2020 to an aggregate sentence of 17 years and 10 months imprisonment (afte(after the remand period was deducted) with non-parole period of 15 yearp>

[4] The aThe appellant’s lawyers had appeagainst conviction and sentence in a timely manner (09 SepteSeptember 2020) and filed written submissions on 11 November 2021. The stad tendered its written subm submissions on 18 November 2021.

[5] In terms of section 21(1)(b) and (c) of the Court of Appeal Act, the appellant could appeal against conviction and sentence only with leave of court. The test in a timely appeal for leave to appeal against sentence is ‘reasonable prospect of success’ [see Caucau v State [2018] FJCA 171; AAU0029 of 2016 (04 October 2018), Navuki v State [2018] FJCA 172; AAU0038 of 2016 (04 October 2018) and State v Vakarau [2018] FJCA 173; AAU0052 of 2017 (04 October 2018), Sadrugu v The State [2019] FJCA 87; AAU 0057 of 2015 (06 June 2019) and Waqasaqa v State [2019] FJCA 144; AAU83 of 2015 (12 July 2019) in order to distinguish arguable grounds [see Chand v State [2008] FJCA 53; AAU0035 of 2007 (19 September 2008), Chaudry v State [2014] FJCA 106; AAU10 of 2014 (15 July 2014) and Naisua v State [2013] FJSC 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds [see Nasila v State [2019] FJCA 84; AAU0004 of 2011 (06 June 2019)].

[6] Further guidelines to be followed for leave to appeal when a sentence is challenged in appeal are well settled (vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013C 14; House v The King [1936] HCA 40; (1936) 55 CLR 499, Kim Nam Bae v Te v The State Criminal AppealAU0015 and Chirk King Yam v The State Criminaeal No.AAU0095 of 20of 2011). The test for leave to appeal t whether the sentence is wrong in law but whether the grounds of appeal against sentence ance are arguable points under the four pries of Kim Namm Nam Bae'< case. For a grof appeal peal timely preferred against sentence to be considered arguable there must be a reasonable prospect of its success in appeal. The aforesaid guidelines are as follow>

(i) Acted upon a wn 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 consideration.

[7] roundsounds of appeal urged on behalf of the appellant against conviction and sentence are as follows:

Coion

Ground 1

THAT the Lehe Learned Trial Judge erred in law and in fact in not adequately directing/misdirecting that the Prosecution evidence before the Court proved beyond reasonable doubts that there were serious doubts in the Prosecution case and as such the benefit of doubt ought to have been given to the appellant.

Ground 2

THAT the Learned Trial Judge erred in law and in fact in not adequately directing the assessors the significance of Prosecution witness conflicting evidence during the trial.

Ground 3

THAT the Learned Trial Judge erred in law and in fact in not directing himself and or the assessors to refer any Summing Up the possible defence on evidence and as such by his failure there was a substantial miscarriage of justice.

Ground 4

THAT the Learned Trial Judge erred in law and in fact in not adequately directing/misdirecting the previous inconsistent statements/evidence made by the complainant and as such there has been a substantial miscarriage of justice.

Ground 5

THAT the Learned Trial Judge erred in law and in fact in misdirecting and/or not properly and/or sufficiently himself and the assessors on the standard and burden of proof.

Ground 6

THAT the Learned Trial Judge erred in law and in fact in misdirecting and/or not properly and/or sufficiently directed himself and the assessors specifically on the prosecution/defence evidence.

Ground 7

THAT the Learned Trial Judge erred in law and in fact in not properly directing himself and/or the assessors, that the Medical Report of the complainant demonstrated doubts of the complaint.

Ground 8

THAT the Learned Trial Judge erred in law and in fact in misdirecting himself when he took into consideration the demeanour of witnesses to believe or not to believe relying only on the demeanour of the complainant and not whole evidence as a whole caused a substantial miscarriage of justice.

Sentence

(a) THAT the appellant relies on Grounds 1 to 8 stated hereinabove.

(b) THAT the appellant’s appeal against sentence being manifestly harsh and excessive and wrong in principal in all the circumstances of the case.

(c) THAT the Learned Trial Judge erred in law and in fact in taking irrelevant matters into consideration when sentencing the appellant and not taking into relevant consideration.

(d) THAT the Learned Trial Judge erred in law and in fact in passing sentence of imprisonment was disproportionately severe punishment Contrary to Section 25 of the Constitution of Fiji (1998) (Section 11 (1) of the 2013 Constitution of Fiji.)

(e) THAT the Learned Trial Judge erred in law and in fact in ordering the appellant to pay restitution as well as imposing custodial sentence.

(f) THAT the Learned Trial Judge erred in law and in fact in not taking into consideration adequately the provisions of the Sentencing and Penalties Decree 2009 when he passed the sentence against the appellant.

[8] The trial judge had summarized the prosecution evidence and defense position in the judgment as follows:

5. In 2015 the complainant was 14 years of age and a class 8 student. The complainant informed the court of two occasions she was sexually abused by the accused. The first incident happened in late 2014 when the complainant was in class 7. The complainant had gone to wash clothes with the accused at Toko river.
   
6. After the complainant finished washing and bathing in the river the accused touched her breasts from on top of her clothes. The complainant did not consent to the accused to touch her breasts. When the complainant came home she informed her grandmother about this incident which was not reported to the police.

7. The second incident was on the 31^st of March, 2015 in the afternoon when the complainant was in the house with the accused. The accused had sent the brother of the complainant to the shop to buy some panadol and had told the complainant to have her shower.

8. When the complainant came out of the bathroom she was wearing a long towel the accused gave her a small towel to change. The complainant was scared of the accused so she changed into a small towel. The accused was also wearing a towel when the complainant went into her room to look for her clothes the accused came from behind and held her tightly and dragged her to his bedroom.

9. The accused made the complainant lie down on his bed and then told her “u tell anyone I woul would kill you” after this the accuserted kted kissing the complainant’s neck then her breast and then her vagina. He then forcefully tried to insert his penis into her vagina for about 5 min the complainant was frightened and scared. After sometime time the accused was able to penetrate her vagina with his penis, the complainant felt the accused penis in her vagina. The accused then told the complainant “u tell anyone or if r if you report this, I will kill you”.
   
10. The complainant did not consent to have sexual intercotercourse with the accused. After wearing her clothes the complainant went and told her uncle Dalituicama who was living next door about what the accused had done to her. Next morning the complainant went to school and also told her school teacher Alena Vodivodi.
    
11. Viliame Dalituicama the uncle of the complainant informed the court that the accused was his younger brother. The accused lived next door with his mother, the complainant and her brother Edward.
    
12. On 31^st March, 2015 at about 7p wite witness was at home when the complainant came crying into his house. When he first asked her what happened she did not res On the second occasion the complainant told the witness that the accused had touched her. her. After sometime the mother of the witness came and he told his mother what the complainant had told him.
    
13. Alena Vodivodi told the court that on 1^st April, 2015 at 8.30am the witness was told by a student that the complainant who was a class 8 student wanted to see her in respect of a problem.
    <
14. T>The witness met the complainant and both went to her office. When the witness asked the complainant about her problem the complainant cried for a while and then told the witness that her uncle Ajay had raped her the previous evening that is on 31^st March.
    
15. The complainant continued to cry when she was ing her problem. The head teacher was informed and the matter was reported to the police.
    
16. Edward Palan#160; the0;the younger brother of the complainant informed the court that on 31^st Marcwas playing with a cous cousin when the accused c him to top and buy panadol. The witness went wint with hith his cousin Dela to the shop.
    
17. After 20 to 30 minutes the witness left the shop for home, on the way he saw his grandmother and aunty getting off the bus so everyone came home together. At home the witness saw the complainant crying.
    
18. The final witness Dr. Jimi Taria narrated to the court the medical findings of Dr. Virisila Sema who had examined the complainant. Dr. Sema had mentioned that her examination was inconclusive meant it was difficult for her to draw any conclusion on what had happened to the patient although there was sign of trauma to the outer lower part of the vagina.
    
19. On the other hand, the accused denied committing the offences as alleged. The complainant did not tell the truth in court she made up a story against him. The incident at the Toko river did not happen because it is a public place where other children were also around so it was not possible for the accused to touch the breasts of the complainant.
    
20. As for the allegation of rape it is again another made up story the complainant did not like the accused who was strict on her. When she went to her uncle Dalituicama’s house she did not say anything about being raped because nothing had happened.
    
21. The complainant made up a story overnight to tell her teacher the next day both the incidents did not happen the complainant could have screamed, yelled and shouted but she did not. The house of her uncle Dalituicama was only 10 steps away so a shout or a scream or a yell would have alerted her uncle who was at his home at the time.
    
22. The accused denied the allegations saying it was a lie and he did not do it.
    

[9] The appellant had given evidence at the trial but not called any witnesses.

01^st ground of appeal

[10] The appellant’s counsel audaciously submits that the trial judge had failed to direct the assessors that the prosecution evidence did not prove the case beyond reasonable doubts as there were serious doubts and as such the benefit of such doubt ought to have been given to the appellant. The only substantive point taken up in the written submissions is that the trial judge had failed to consider that the victim had lied under oath that the appellant had taken advantage of her.

[11] The totality of evidence shows that there was no factual basis for the trial judge to have directed the assessor on the lines suggested by the appellant. This is a classic case of ‘family rape’ where the appellant (paternal uncle) had taken full advantage of the motherless victim (aged 14).

02^nd and 04^th grounds of appeal

[12] The counsel highlights under both grounds of appeal more or less the same evidence of the victim allegedly in conflict with her police statement and argues that the trial judge had failed to give directions as expressed in Singh v The State [2006] FJSC 15; CAV0007U.05S (19 October 2006) and Ram v The State [ 2012] FJSC 12; CAV0001 of 2011 (09 May 2012).

[13] In Singh and Ram the Supreme Court dealt with inconsistencies in the evidence at the trial with previous statements ‘on oath’ or previous sworn statements. The alleged inconsistencies in this case were not referable any such previous sworn statement but only with the victim’s police statements.

[14] In any event, is the alleged conflicting evidence pointed out by the appellant so material as to affect the credibility of the complainant. The test for evaluation of any alleged omissions, contradictions and inconsistences is whether they go to the root of the prosecution case as to discredit the complainant [see Bharwada Bhoginbhai Hirjibhai v State of Gujarat [1983] AIR 753, 1983 SCR (3) 280, Nadim v State [2015] FJCA 130; AAU0080.2011 (2ber 2015) and Turogo v State [2016] FJCA 117; AAU.0008.2013 (30 September 2016)].

[15] Neitherassessors nor the trial judl judge had considered the alleged conflicting evidence to be going to the root of the prosecution case and affecting the very foundation of the prosecution case. I do not see anything or reason to conclude otherwise.

05^th ground of appeal

[16] The directions to the assessors in the summing-up on standard of proof and burden of proof cannot be reproached and this ground of appeal is frivolous.

03^rd and 06^th grounds of appeal

[17] The appellant’s complaint here is that the trial judge had only focused on the prosecution case and not the weight of the possible defense adduced by the appellant. He simultaneously contends that the trial judge had not sufficiently directed the assessors and himself on the prosecution and defense evidence.

[18] Both assertions are devoid of any merit. On a reading of the summing-up (paragraphs 98-114) and the judgment it is clear that not only had the judge directed the assessors in a balanced, objective and fair matter but he had also directed himself on the summing-up and then considered both versions in the judgment.

07^th ground of appeal

[19] The appellant argues that the trial judge had not properly directed the assessors and himself that the medical report of the complainant showed doubts in the complainant’s allegation of rape.

[20] The cornerstone of the argument is that the medical report had shown the complainant’s hymen to be intact. However, it had recorded (a) slight bruise at 7 o’ clock and 5’ o’clock (b) vaginal opening (orifice) pea size bruise measuring 0.5 cm by 0.5cm (c) no tears, no active bleeding and no discharge. The medical evidence was inconclusive but did not rule out an act of rape.

[21] There cannot be a serious criticism of the trial judge’s directions at paragraphs 90-94 on expert evidence and at paragraphs 83-89 specifically on the medical report. The trial judge’s consideration of the medical report in the judgment is at paragraph 18 and he was correct in his assertion at paragraph 32 that although the examining doctor did not make any conclusive findings in regard to penetration it did not affect the complainant’s version.

08^th ground of appeal

[22] The appellant complains that the trial judge had taken into consideration only the demeanor of the victim and not the whole evidence in entering a verdict of guilty against the appellant.

[23] On a plain reading of the judgment it becomes clear that this complaint is devoid of any merits.

[24] Therefore, I hold that none of the grounds of appeal urged has a reasonable prospect of success in appeal.

Grounds of appeal (sentence)

[25] Ground (a) states that the appellant relies on all grounds of appeal urged against conviction and what is meant by that is not elaborated.

[26] Ground (b) claims that the sentence is harsh and excessive while ground (c) states that the trial judge had taken into consideration irrelevant matters and not taken into account relevant matters. Ground (d) argues that the sentence is disproportionately severe while ground (e) claims that the trial judge had ordered restitution in addition to the sentence. Ground (f) raises an issue that the trial judge had not taken into account the provisions of the Sentencing and Penalties Act.

[27] The written submissions of the appellant had not elaborated any of the above grounds of appeal against sentence. Ground (e) is totally misconceived. The appellant’s submissions have not indicated what maters have or have not been taken into account by the trial judge or what provisions of the Sentencing and Penalties Act have been ignored.

[28] I will however consider the complaint that the sentence is harsh and excessive and disproportionately sever to the offending from a different angle though not adverted to by the appellant’s counsel as quantum of the sentence alone can rarely be a ground for the intervention by the appellate court [vide Raj v State ()uprap> [29]>[29] AccorAccording to the trial judge, having taken into consideration the ‘objective seriousness’ of the crime he had decided to fix a higher starting point and picked 13 years following sentencing tariff for child/juvenile rape set as 11-20 years in Aitcheson v State [2018] FJSC 29; CAV0012.2018 (2 November 2018). What the trial judge had mentioned at paragraphs 15-20 as to how serious child/juvenile abuse is, in my view, is beyond qun.

[30] The aggravating factors highlighted byed by the the trial judge are at paragraph 10 of the sentencing order and they cannot be censured as not being so except perhaps (f) which appears to be an element or part and parcel of almost any child abuse offending. In my view, the enhancement of the sentence by 06 years on account of aggravating factors also cannot be unduly criticized.

[31] The trial judge had also refused to consider most of the appellant’s purported mitigating factors as they were all personal circumstances. No serious complaint can be made in this respect as in Fiji personal circumstances carry little mitigation value in sexual offences – vide Raj v State/b>><160;##160;[2014] FJSC 12

[32] However, in Senilolokula v State [2018] FJSC 5; CAV0017.2017 (26 April 2018) the Supreme Court has raised a few concerns regarding selg the ‘starting pointpoint’ in the two-tiered approach to sentencing in the face of criticisms of ‘double counting’ and stated that sentencing is an art, not a science, and doing it in that way the judge risks losing sight of the wood for the trees.’

[33] The Supreme Court said in Kumar v State [2018] FJSC 30; CAV0017.2018 (2 Nor 201at if judges take as their starting pointpoint somewhere within the range, they wily will have factored into the exercise at least some of the agtravafeatures of t of the case. Ttimate sentence will then then have reflected any otheraggravagravating features of the case as well as the mitigating features. On the other if judges dges take air stg point the lowerlower end of the range, they will not have factored into the exercise&#160 anyall&#1i>the aggravating ting features of the case as well as the ating features.

[34] This concern on doubleouble counting was echoed once again by the Supreme Court in Na Stat [2019] FJSC 29; CAV0007.2019 (31 October 2019). If). If not, it is not clear what other facthe trial judge had considersidered in selecting the starting point other than the aggravating factors indicated except the ‘objective seriousness’ of the crime.

[36] This leads to another issue. I am inclined to believe that when the tariff for child/juvenile rape was increased to 11-20 years in Aitcheson v State (sufra) from prem previously existing tariff of 10-18 years set in Raj v Sta> (supra) Supremepreme CourtCourt woule beedful of all the matters expressed at paragraphs 1phs 15-20 5-20 in the sentencing order by the trial judge as to the seriousness of cjuvenbuse herefore the ‘ob16;objectijective seve seriousness’ of acts of child/juvenile sexual abuse. Thus, my concern is that when a trial judge picks a starting point in the middle of Aitcheson tariff without indicating what matters had been taken into account but purely on ‘objective seriousness’, whether the judge may be considering what is already inbuilt in the sentence range once again in selecting the starting point. This can amount to double counting.

[37] However, it is the ultimate sentence that is of importance, rather than each step in the reasoning process leading to it. 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 (vide Koroicakau v The Sta>e [2006] FJSC 5; CAV0006U.2005S (4 May 2006). In determining whether the sentencing dison has miscarried the appelappellate courts do not rely upon the same methodology used by the sentencing judge. The approach taken by them is to assess whether in all the circumstances of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies within the permissible range (Sharma v State [201CA 178; AAU48.2011 (3 December 2015). However, not every sentence within the range woul would be necessarily an appropriate sentence that fits the crime.

[38] Nevertheless, whether the ultimate sentence imposed on the appellant is justified or not should be decided by the full court despite a possible sentencing error of double counting. If so, the full court would decide what the ultimate sentence should be. The full court exercising its power to revisit the sentence under section 23(3) of the Court of Appeal Act wouve to decide that matteratter after a full hearing.

[39] The appellant should be given leave to appeal against sentence on this aspect of possible ncing error. The appropriate sentence is a matter for the fthe full court to decide.

Orders

1. Leave to appeal against conviction is refused.
2. Leave to appeal against sentence is allowed.
   

Hon. Mr. Justice C. Prematilaka

ACTING RESIDENT JUSTICE OF APPEAL