Ramai v The State [1998] FJHC 10; Haa0052j.97b (26 January 1998)

Fiji Islands - Ramai v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Labasa

Appellate Jurisdiction

CRIMINAL APPEAL NO. 0052 OF 1997

Between:an>

IOSEFO RAMAI
Appellant

and:

THE STATE
Respondent

Appellant in Person
Ms. A. Driu for the Respondent

JUDGMENT

On the 27th August 1997 the appellant was convicted by the Labasa Magistrate Court on his plea of guilty to an offence of Indecent Assault. Upon his conviction the appellant was sentenced to 2 1/2 years imprisonment.

He now appeals against the sentence on numerous grounds which may be conveniently collected under the heading: 'harsh and excessive'.

The facts outlined by the police prosecutor and admitted by the appellant told of how the appellant and the complainant, a fifteen (15) year old student living with him, came to Labasa town and had gone to the PEU Office where the appellant had asked to use the toilet facilities. After entering the toilet the appellant called the complainant into the toilet where he kissed her, fondled her breasts, and inserted his finger into her vagina.

The complainant ran away and complained about the incident to a relative and the matter was reported to the police. With admirable speed the appellant was located, interviewed and charged by the police and he was dealt with by the Labasa Magistrate Court all on the same day that the incident took place.

On appeal the appellant in seeking a lighter sentence, urged his advanced years (54 years); the fact that he was a first offender; the plight of his family; and his leadership role in the village. He explained that his wife of over 30 years had suffered a stroke which prevented normal sexual relations and that at the time of the incident he had been overcome by an uncontrollable sexual desire.

The appellant expressed his sincere remorse in committing the offence and the mental anguish and life-long shame that he has brought upon himself and his family. He has already served by now, over 5 months imprisonment and professes to have adopted the Lord as his 'guide and saviour'.

State Counsel in opposing the appeal highlighted various aggravating features of the case including the wide disparity between the appellant's and the complainant's ages and the obvious 'relationship of trust' that existed between them at the time the offence was committed.

Both 'features' were mentioned by the trial magistrate in his sentencing remarks which, so far as it goes, cannot be faulted.

I say 'so far as it goes' advisedly because, although there was a medical report tendered in Court, no reference has been made to its contents. Had the trial magistrate referred to it, he would have realised that despite the complainant's relatively young age and apparent naivety, she was by no means sexually inexperienced and might even have been pregnant at the time.

Having said that however, this cannot and does not excuse or mitigate the appellant's despicable behaviour towards the complainant. It might be that the trauma of the assault might not have affected the complainant as severely as it would an infant child, but undoubtedly, the complainant was distressed.

The appellant further advised the Court that since the incident, the complainant has returned to her family home in Bua and no longer lives with the appellant's family. He assured the Court that there was no danger whatsoever of a repetition of the offence or of his ever re-offending.

The appellant alsplaomplained that the sentence was unduly harsh having regard to sentences passed in similar cases in the Labasa Magistrate Court. In this regard the appellant's sentence may be compared with that imposed in The State v. Necani Nawaqadau Labasa Cr. Case No. 859 of 1997 in which a 23 year old first offender indecently assaulted in similar manner, his 7 year old sister-in-law and was sentenced by a different magistrate to 18 months imprisonment on the 11th of September 1997 (i.e. barely a fortnight later).

State Counsel submits however that given that the maximum sentence for an offence of Indecent Assault is 5 years imprisonment a sentence of exactly half that length cannot be considered either harsh or excessive and, in principle, I agree.

But the clear disparity in sentences remains and as was said by Knox-Mawer P.J. in Michael Parma Nand v. R. 14 F.L.R. 45 at p.46:

"It is desireable that the Supreme Court, through its appellate jurisdiction, should, whenever feasible, ensure that there is some measure of uniformity in the sentences imposed by the Courts below."

A fortiori where the disparity in sentences in the one Court, for essentially identical offences, is only explicable by the fact that they were imposed by different magistrates.

The appellant's sentence is accordingly reduced to one of 18 months imprisonment with effect from the 27th of August 1997. Subject to this slight alteration in the appellant's sentence the appeal is dismissed.

D.V. Fatiaki
JUDGE

At Labasa,
26th January, 1998.

Haa0052j.97b