Navuki v State [2022] FJCA 25; AAU038.2016 (3 March 2022)

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

CRIMINAL APPEAL NO. AAU 038 of 2016

[In the High Court at Labasa Case No. HAC 050 of 2015]

BETWEEN:

ILAI NAVUKI

Appellant

AND:

STATE

Respondent

Coram: Gamalath, JA
: Prematilaka, JA
: Bandara, JA

Counsel: Ms. S. Ratu for the Appellant
: Ms. P. Madanavosa for the Respondent

Date of Hearing: 03 February 2022

Date of Judgment: 03 March 2022

JUDGMENT

Gamalath, JA

[1] I agree with the judgment in draft of Prematilaka, JA and its conclusions.

Prematilaka, JA

[2] The Appellant had been granted leave to appeal against the sentence imposed by the High Court on a single count of rape under section 207 (1) and 207 (2)(a) the Crimes Act, 2009 alleged to have been committed in Savusavu in the Northern Division for having had carnal knowledge of P.N (name withheld) without his consent. He had been convicted on another count under section 275 of the Crimes Act, 2009 for assault causing actual bodily harm. The victim, aged 16, was one of the sons of the appellant.

[3] The Appellant had pleaded guilty and the trial judge had sentenced him to 16 years of imprisonment with a non-parole period of 15 years on the charge of rape and 12 months of imprisonment on the charge of assault causing actual bodily harm; both sentences to run concurrently.

[4] I shall quote the summary of facts from the Sentence Order dated 27 January 2016 for convenience:

‘2. The prosecution then read her summary of facts in court. They were as follows. On 10 October 2015, the accused was married with six children – three sons and three daughters. They were aged between 18 years and 8 months old. The accused and his wife had been married for 18 years. The family lived in a village in Cakaudrove. At the time, the accused's wife had been in Nadi for about a month.

3. The complainant in this case was the accused's son. He was 16 years at the time. On 10 0ctober 2015, between 8 to 11pm, the accused was at home with his son and two daughters. The daughters were asleep. The accused called the complainant to his room to massage him, using coconut oil. Later, he asked his son for anal intercourse. The son refused. The accused then punched him on the jaw. He later forced himself on his son by penetrating his anus with his penis, without his consent, and he well knew he was not consenting to the above, at the time. The matter was reported to police. The accused was interviewed by police and he admitted the offence. He was later charged with rape and assault.’
   

[5] Through his counsel, the appellant had admitted the summary of facts i.e. he had penetrated his son's anus with his penis without his consent knowing that the latter was not consenting to the sexual act. He had also admitted that he punched his son in the jaw when he refused to have sex with him. Accordingly, the High Court had found the appellant guilty on both counts and convicted him accordingly.

[6] The grounds of appeal urged before this court are as follows:

‘Ground 1

THAT the Learned Trial Judge erred in fact and law when he chose a high starting point for sentence which resulted in the sentence being harsh excessive.

Ground 2

THAT the Learned Trial Judge erred in law when he imposed a non-parole which was too close to the head sentence.’

01^st ground of appeal

[7] The Appellant’s complaint that the sentence of 16 years of imprisonment is harsh and excessive flows from the argument that the trial judge had selected 15 years as the starting point of the then established range of sentence for rape of juveniles i.e. 10-16 years [vide Raj v State AAU0038 of 2010: 05 March 2014 [2014] FJCA 18 and Raj v State CAV0003 of 2014: 20 August 2014 [2014] FJSC 12] resulting in the final sentence fixed at the highest end of the tariff.

[8] Subsequently, in Aitcheson v State [2018] FJSC 29; 12.2018 (2 November 2018) the Supreme Court enhanced sentencing tariff for juvenile rape tope to 11-20 years stating inter alia that increased tariff represents the denunciation of the courts of such offences in the strongest terms.

[9] The principle against retrospectivity and section 14(2)(n) of the Constitution are not a bar for a sentencing court or an appellate to consider the existing tariff as the offender is not sought to be punished for an act which was not a criminal offence at the time of its commission and change in sentencing tariff which is only meant to achieve uniformity at any given time does not alter the sentence statutorily prescribed (vide Narayan v State [2018] FJCA 200 ; AAU107 of 2016 (29 November 2018), Chand v State [2019] FJCA 192; AAU0033.2015 (3 October 2019) and R>Ram v State [2021] FJCA 218AAU024.2016 (2 July 2021)].

[10] The judge had started with 15 years, deducted 04 years for mitigating factors and added 05 years for aggravating factors ending up with the head sentence of 16 years. I do not find anything obnoxious in this exercise of deducting for mitigation and adding for aggravation and the respective weights given. Neither does the appellant complain against the weight given by the trial judge to mitigating and aggravating factors.

[11] The appellant relies on Koroivuki v State AAU0018 of 2010: 05 March 2013 [2013] FJCA 15 where inter alia it was held that as a matter of good practice the starting point should be picked from the lower or middle range of the tariff and if the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range.

[12] However, since then there has been a departure from the thinking in Koroivuki in Senilolokula v State [2018] FJSC 5; CAV0017.2017 (26 April 2018) where the Supreme Court has raised a few concerns regarding selecting the ‘starting point’ in the two-tiered approach to sentencing in the face of criticism of ‘double counting’ and also questioned the appropriateness in identifying the exact amount by which the sentence is increased for each of the aggravating factors stating that it is too mechanistic an approach and 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.

[13] Once again, the Supreme Court said in Kumar v State [2018] FJSC 30; CAV0017.2018 (2 November 2018) that if judges take as their starting point somewhere within the range, they will have factored into the exercise at least some of the aggravating features of the case. The ultimate sentence will then have reflected any other ggrav feng features of the the case as well as the mitigating features. On the other hand, if judges take as their starting point the lower end of the range, they will not have factored into the exercise any of the aatiav factors, and and they will then have to factor into the exercise all the aggravating features of the case as well e mitng features. The Supreme Court also added that many things which make these crimecrimes so s so serious have already been built into the tariff and there is a particularly important burden on judges not to treat as aggravating factors those features of the case which will already have been reflected in the tariff itself, for it would be another example of ‘double-counting’.

[14] The concern on double counting was echoed once again by the Supreme Court in Nadan v State [2019] FJSC 29; CAV0007.2019 (31 October 2019) and it was stated that the difficulty is that the appellate courts do not know whether all or any of the aggravating factors had already been taken into account when the trial judge selected as his starting point a term towards the middle of the tariff. If the judge did, he would have fallen into the trap of double-counting.

[15] This court faces the same difficulty in the current appeal as well. The trial judge had not stated what matters he took into account in taking 15 years as the starting point. The concern is whether the judge had already considered all or some of the aggravating features he had enumerated in selecting the starting point. If so, the trial judge has committed ‘double counting’ in the sentencing process.

[16] &#16 appehrs thet the trialtrial judge had sought to follow the two-tiered approach to sentencing (see Naikelekelevesi v State [2008] FJCA 11; AAU0061.2007 (27 June)], at judo in Fiji, where (i) a sentencing judgejudge firs first artt articulates a starting point based on the seriousness of the statutory penalty, guideline appellate judgments, nature and characteristic of the criminal enterprise that has been proven before i.e. aggravating features of the offence (considered objectively) but not the offender and relevant community considerations, and (ii) then the judge applies a bundle of aggravating and mitigating factors relating to the offender leading to a sentence end point i.e. all the subjective circumstances of the offender (see Qurai v State [2015] FJSC 15; CAV24.2014 (20 August 2015).
nameding83ing83">>[18] The guidelines to be followed when a sentence is challenn appre whether the sentencing judge (i) acted upon a on a wrongwrong 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 [vide Naisua v State [2013] FJSC 14; CAV0010 of 2013 (20 November 2013); House v The King [1936]40; (1936) 55 CLR 499, Kim Nam Bae v The State Criminal Appeal No.A5 and Chirk King Yam v The State Criminal Appo.AAU0095 of 20of 2011)].

[19] In the absen any indication by the trial judge as to what aggravating features he had considered in picn picking the starting point at 15 years, court would adopt the guidaguidance provided by the Supreme Court in Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006) where it was held that it is the ultimate sentence that is of importance, rather than each step in the reasoning process leading to it and 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.

[20] The Supreme Court in Koroicakau further remarked that the sentencing process is not a mathematical exercise but an exercise of judgment involving the difficult and inexact task of weighing both aggravating and mitigating circumstances concerning the offending, and that the so-called starting point is itself no more than an inexact guide. The Supreme Court expressed the view that different judges and magistrates will assess the circumstances somewhat differently in arriving at a sentence and also added that different judges may start from slightly different starting points and give somewhat different weight to particular facts of aggravation or mitigation and even if the starting point was too high, it does not follow that the sentence ultimately imposed will be one that falls outside an appropriate range for the offending in question.

[21] Similar sentiments were echoed in Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015) where it was held that in determining whether the sentencing discretion has miscarried the appellate courts do not rely upon the same methodology used by the sentencing judge. The approach taken by appellate courts 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. However, it should be assumed that every sentence within the tariff would be considered ipso facto appropriate and fits the gravity of the offence particularly when the sentencing range is wide and broad.

[22] In other words, the appellate courts in revisiting the propriety of the sentence would not necessarily follow the same process as in the original court but would take a holistic view of the final sentence.

[23] Sentencing by its very nature is an unavoidable difficult task. In Veen v The Queen (No&#160u>& [1988] HCA 14; (1988) 164 CLR 465 wMason Cson CJ, Brennan, Dawson and Toohey JJ said at 476:‘... seing eing is not a purely logical exercise, and the troublesome nature of the sentencing discreticretion arises in large measure from unavoidablficul giving weight to each of the purposes of punishmnishment. ent. 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.’

[24] R v Engert;(unrep, 20/1 20/11/95, NSWCCA) Gleeson CJ said at 68 after discussin0;Veen>Veen v The Queen (60;2):

:

‘A moment’s consideration will show that the interplay of the considerations relevant to ncingbe complex and on occasion even intricate. ...

It is therefore erroneousneous 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.’

[25] It is well established in common law that the task of sentencing may include the following considerations. An offender should be adequately punished for the offence and the principle of proportionality operates to guard against the imposition of unduly lenient or unduly harsh sentences. Deterrence is, and remains omnipresent in sentencing law and it is axiomatic that the purpose of the criminal law is to deter not only the offender but also others who might consider breaking the law. To protect the community from the offender is another purpose of sentencing; however, a sentence should not be increased beyond what is proportionate to the crime merely to protect the community from the risk of further offending by the offender. Rehabilitation as a purpose of sentencing is aimed at the renunciation by the offender of his or her wrongdoing and the offender’s establishment or re-establishment as an honourable law-abiding citizen. Making the offender accountable too is an important purpose of sentencing. To denounce the conduct of the offender is also treated as another purpose of sentencing which is to condemn the offender for his or her conduct. Sentencing should also recognise the harm done to the victim of the crime and the community. Retribution as opposed to vengeance is also one of the purposes of sentencing in that not only must the community be satisfied that the offender is given his just punishment, but it is also important that the victim, or those who are left behind, also feel that justice has been done. Sentencing and Penalties Act, 2009 by and large embodies these principles.

[26] In R v Radich [1954] NZLR 86 it was held as follows:

‘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 sentence are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine the appropriate amount of punishment. ..................

‘The basis upon which the Court should approach an application for a reduction is reasonably clear. It must be satisfied that the sentence is manifestly excessive, or wrong in principle, R. v. Brooks ([1950] N.Z.L.R. 658; [1950] G.L.R. 504), or there must be exceptional circumstances.’

[27] The appellant’s counsel urged this court to compare the facts in Aitcheson along with the sentence passed therein with those of the appellant’s case. However, as remarked in

Radich:

‘Little help is gained by considering other sentences in respect of the same type of offence, for the whole of the surrounding circumstances and the situation of the offender, and others, have to be taken into account, and these factors vary infinitely.’

[28] In the light of the above discussion and considering all the circumstances of the case, I am of the view that the current sentence should be set aside and a sentence of 15 years of imprisonment should be substituted therefor.

02^nd ground of appeal

[29] The appellant based on sections 18 and 4(1)(d) of the Sentencing and Penalties Act complains that the non-parole period of 15 years is too close to the sentence of 16 years which denies him the chance of rehabilitation.

[30] In Korodrau v State [2019] FJCA 193; AAU090.2014 (3 October 2019) the Court of Appeal examined a similar argument extensively having considered all previous authorities on this matter. The issue before court and its observations are as follows:

‘[89] The Learned Trial Judge while sentencing the Appellant to 17 years imprisonment had fixed the period during which he is not eligible to be released as 16 years in terms of section 18(1) of the Sentencing and Penalties Decree. Section 18(4) states that any non-parole period so fixed must be at least 06 months less than the term of the sentence. Thus, the non-parole period of 16 years fixed by the Trial Judge is in compliance with section 18(4)’

[90] However, the complaint of the Appellant is that the non-parole period of 16 years has the effect of denying or discouraging the possibility of rehabilitation and is inconsistent with section 4(1) of the Sentencing and Penalties Decree and the decision in Toraate #160;AAU0063 of 2011ebruaryruary 2015 [2015] FJCA 20.’

&#[114] The Court ourt of Appeal guidelines in ToToraandb>and Raogo Bogidr> by the the Supreme Court required the trial Judge to be mindful that (i) the non-parole term should not belose e heatence ance as to deny or discourage the possibiliibility of rehabilitation (ii) Nor should ould the gap between the non-parole term and the head sentence be such as to be ineffective as a deterrent (iii) the sentencing Court minded to fix a minimum term of imprisonment should not fix it at or less than two thirds of the primary sentence of the Court.’

[31] In Singh v State [2016] FJCA 126; AAU009.2013 (30 September 2016) the Court of Appeal remarked:

‘I am also of the view that the wording in section 18(1) and 18(2) is not suggestive that the intention of the Legislature in enacting that provision had rehabilitation of offenders in mind as sought to be argued by the Appellant. Quite contrarily it is deterrence and retribution that Parliament appears to have intended.’

[32] In AAU1 2010: 3 DecemDecember 2015 [2015] FJCA 154  the Court of Appeal saithe the opee operation of the non-parole period as follows:

“While leaving the discretion to decide on the non-parole period when sentencing to the sentencing Judgeould cessary to state tate that&that the sentencing Judge would be in the best position in the particular case to decide on the non-parole period depending on the circumstances of the case.”

‘.... was intended to be the mi period which the offender nder would have to serve, so that the offender would not be released earlier than the court thought appropriate, whether on parole or by the operation of any practice relating to remission’.

[33] The Supreme Court in Tora v State;;CAV11 of 2015: 22 October 2015 [2015] FJSC 23 had quotom RaogoRaogo v tate i> "The mischief that the legislature pure perceived was that in serious cases anes and in d in cases involving serial and repeat offenders the use of the remission power resulted in these offenders leaving prison at too early a date to the detriment of the public who too soon would be the victims of new offences."

[34] The arguments taken up earlier based on the calculation of remission vis-à-vis the non-parole period have been put to rest by the Corrections Service (Amendment) Act 2019. It states:

‘2. Secti of the Corrections Sens Service Act 2006 is amended after ction (2) by inserting the the following new subsections—

“(3) Notwithstanding subsection (2), wheresentence of a prisoner incl includes a non-parole period fixed by a court in accordance with section 18 of the Sentencing and Penalties Act 2009, for the purposes of the initial classification, the date of release for the prisoner shall be determined on the basis of a remission of one-third of the sentence not taking into account the non-parole period.

(4) For the avoidance of doubt, where the sentence of a prisoner includes a non-parole period fixed by a court in accordance with section 18 of the Sentencing and Penalties Act 2009, the prisoner must serve the full term of the non-parole period.

(5) Subsections (3) and (4) apply to any sentence delivered before or after the commencement of the Corrections Service (Amendment) Act href=://www.paclii.olii.org/fj/lnum_act/csa2019303/">2019.”

Consequential amal amendment

3.&#16>The Sentencing analties Acts Act 2009 i009 is amended by—

(a) in section 18—

(i) in subsection (1), deleting “Subject to subsection (2), when” and substituting “When”

(ii) deleting subsection (2); and

(b) deletinleting sec20(3)..

[35] Thus, in terms of the new sentencing regime introduced by the Corrns Service (Amendment) Act 2019, when a court sentences an offender to be imprisoned for life or for a term of 02 years or more the court must fix a period during which the offender is not eligible to be released on parole and irrespective of the remissions that a prisoner earns by virtue of the provisions in the Corrections Service Act 2006, such prisoner must serve the full term of the non-parole period. In addition, for the purposes of the initial classification, the date of release for the prisoner shall be determined on the basis of a remission of one-third of the sentence not taking into account the non-parole period. In other words, when there is a non-parole period in operation in a sentence, the earliest date of release of a pensioner would be the date of completion of the non-parole period despite the fact that he/she may be eligible to be released early upon remission of the sentence.

[36] The changes introduced by the Corrections Service (Amendment) Act, 2019 to the non-parole regime are in accord with the decisions in Natiu>and Raogo. However, the amen amendment has negated the following aspects of Timo v State CAV0022 of 2018:30 August #019 [2019] FJSC 22.

(i) fixing a non-pareriod iiod is quite a drastwer and to make it reasonabsonable, it should be exercised by a Court after giving the convict an opportunity of having a say to enabm or her to persuade the Court to not fix any non-parole pele period or at worst a short non-parole period. (per Lokur,J)

(ii) The poo fix a non-parolparole period should be exercised by the Courts in exceptional cases and circumstances and where it is absolutely necessary to do so and when that power is exercised it must be preceded by a hearing and supported by reasons. (per Lokur,J)

[37] Corrections Service (Amendment) Act 2019 on the other hand has affirmed the following direction by the Supreme Court in Timo:

‘The remission period must be calculated on the basis of the total sentence awarded to a convict (head sentence plus the set off period) and the convict given the benefit thereof subject to the non-parole period (if any) fixed by the Court and the practice followed by the Commissioner of calculating the remission period on the expiry of the non-parole period, being the head sentence minus the non-parole period ought to be discontinued forthwith. (per Lokur,J)

[38] Gates, J remarked in Timo as follows:

‘judicial officers need to justify the imposition of non-parole periods close to the head sentence, or

indeed for the decision not to impose one at all,

for section 18(1) speaks in terms of “must fix a period...” (per Gates,J)

[39] It appears that Corrections Service (Amendment) Act 2019 has left the first part of the above observations by Gates, J intact while it has clearly rendered the d part nugatory. The last comment on section 18(1) of the Sthe Sentencing and Penalties Act 2009 has been affirmed by the amendment.

[40] Just as Gates, JA did in Timo, the Court of Appeal in Prasad v. State AAU 0010 of 2014: 04 October 2018 [2018] FJCA 152 earlier held that a trial judge exercising discretionary power should ordinarily justify or give reasons for the decision, particularly when non-parole period is fixed very close to the head sentence. But, the Court added that there may be cases where the decision to fix the non-parole period close to the head sentence is fully justified on the facts and circumstances of the case. Finally, the Court following the Supreme Court decisions in Kean v State CAV0007 of 2015: 23 October 2015[2015] FJSC 27 and Bogidrau v State CAV0031 of 2015: 21 April 2016 [2016] FJSC 5 did not interfere with the fixing of the non-parole period 09 months less than the final sentence as it did not find overwhelming reasons to do so, coupled with the fact that the trial judge was in the best position to decide on the matter.

[41] The non-parole period must represent the minimum period the offender must spend in custody having regard to the purposes of punishment and objective and subjective features of the case (vide Bugmy v The Queen; Power v The Queen (1974)131 CLR 62.

[42] Therefore, despite the trial judge having not given specific reasons in fixing the non-parole period at 15 years and the absence of a specific reference to the aspect of rehabilitation, I hold that in the light of the facts and circumstances of the case the gap of 01 year between the final sentence and the non-parole period cannot be said to violate any statutory provisions and is not obnoxious to the judicial pronouncements on the need to impose a non-parole period. One year gap in this case is not too close to the head sentence and justified given the facts and circumstances of the case against the appellant.

Bandara, JA

[43] I have read the draft judgment of Prematilaka, JA and agree with his reasoning and conclusions.

Orders

(1) Appellant’s sentence of 16 years of imprisonment with a non-parole period of 15 years is quashed.

(2) A sentence of 15 years of imprisonment with a non-parole period of 14 years is passed on the appellant.

(3) The sentence should commence with effect from 27 January 2016.

Hon. Mr. Justice S. Gamalath

JUSTICE OF APPEAL

Hon. Mr. Justice C. Prematilaka

JUSTICE OF APPEAL

Hon. Mr. Justice W. Bandara

JUSTICE OF APPEAL