State v Koroi [2002] FJHC 144; HAA0050J.2002S (12 August 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0050 OF 2002

Between:

STATE
Appellant

And:

NAVAUNIANI KOROI
Respondent

Mr V. Vosarogo for Appellant
Ms Nair for Respondent

Hearing: 7^th August 2002

Judgment: 12^th August 2002

JUDGMENT

On the 11^th of February 2002, the Respondent pleaded guilty in the Suva Magistrates Court to the following offences:

FIRST COUNT

Statement of Offence

RAPE: Contrary to sections 149 and 150 of the Penal Code, Cap. 17.

Particulars of Offence

NAVUANIANI KOROI between the 15^th day of December and the 31^st day of December, 1999 at Suva in Central Division, had unlawful carnal knowledge of [the complainant], without her consent.

SECOND COUNT

Statement of Offence

RAPE: Contrary to sections 149 and 150 of the Penal Code, Cap. 17.

Particulars of Offence

NAVUANIANI KOROI between the 1^st day of July and the 31^st day of July, 2001 at Suva in Central Division, had unlawful carnal knowledge of [the complainant], without her consent.

THIRD COUNT

Statement of Offence

RAPE: Contrary to sections 149 and 150 of the Penal Code, Cap. 17.

Particulars of Offence

NAVUANIANI KOROI on the 4^th day of January, 2002 at Suva in Central Division, had unlawful carnal knowledge of [the complainant], without her consent.

FOURTH COUNT

Statement of Offence

RAPE: Contrary to sections 149 and 150 of the Penal Code, Cap. 17.

Particulars of Offence

NAVUANIANI KOROI on the 6^th day of January 2002 at Suva in Central Division, had unlawful carnal knowledge of [the complainant], without her consent.

FIFTH COUNT

Statement of Offence

RAPE: Contrary to sections 149 and 150 of the Penal Code, Cap. 17.

Particulars of Offence

NAVUANIANI KOROI on the 1^st day of February, 2002 at Suva in Central Division, had unlawful carnal knowledge of [the complainant], without her consent.

The facts were outlined by the prosecution and the Respondent admitted them. State counsel tendered the antecedent report and list of previous convictions. The previous convictions which dated 1981 were for the offences of Obstructing Police Officer In Due Execution Of His Duty, and Drunk and Disorderly Behaviour. The Respondent mitigated.

The State then made an application under section 222(1) of the Criminal Procedure Code, that the learned Magistrate commit the matter to the High Court for sentencing. The learned Magistrate refused the application and sentenced the Respondent to four years imprisonment on Count 1, and five years imprisonment on each of the remaining counts. The sentences on Count 1 and 2 were to be served consecutively, the remaining counts were to be served concurrent to the other counts. In total, the Respondent was to serve 9 years imprisonment.

The Director of Public Prosecutions now appeals against sentence on the following grounds:

(a) That the learned Magistrate erred in law when he refused to remit the matter to the High Court for sentencing in accordance with the provisions of section 222(1) of the Criminal Procedure Code, Cap. 21 and proceeded to sentence the Respondent.

(b) That the learned Magistrate erred in law and in fact when he rejected the antecedent record of the Respondent and found that he was a person of prior good character.

(c) That the sentence was wrong in law and manifestly lenient having regard to the aggravated features and circumstances of the case.

Grounds (a) and (b):

Because these grounds are closely connected, I deal with them together. The facts of this case, were that the Respondent who is 44 years old and a soldier is married to Sera Koroi. They have five children, four sons and one daughter. In 1999 the Respondent’s daughter was 13 years old and a student in Class 7. Between the 15^th and 31^st of December, she was playing with her friends outside their home when the Respondent asked her if she wanted to be caned or punished. He then told her to go and lie on the bed. He proceeded to rape her. He then had sexual intercourse with her without her consent three or four times a week until February 2002. On the 2^nd of February 2002, the Respondent’s wife, suspecting that her daughter was pregnant, asked her if she was. Her daughter said that she was, and that the person with whom she had had sexual intercourse was her father. Her mother, on the recommendation of the Church Minister, referred the matter to the police. She was then 7 months pregnant. A medical report, tendered in court by the prosecution states that the complainant said that her father had raped her, and threatened to kill her if she told anyone about it. The report confirmed the pregnancy and the finding that the complainant’s hymen was not intact, and that the posterior vagina was smooth. She was referred to a psychiatrist and to the Women’s Crisis Centre for counselling.

The antecedent history states that the Respondent is originally from Nayavu Village, Wainibuka and has been married for 20 years. He is a Lance Corporal in the army. He attended school until Form 3, and was employed as a labourer at Casco Steel from 1974 to 1977. He then joined the Special Constabulary in 1999, and joined the Military Forces in 1981. Apart from the two previous convictions in 1981, he is a first offender.

In mitigation the Respondent said that he had pleaded guilty, that he had sought forgiveness from his wife and children, that his eldest son was studying towards a Masters Degree, his second child attended secondary school and his two younger children were still in primary school. He said he was the sole breadwinner in the family.

The learned Magistrate then refused the State’s application to commit to the High Court for sentencing. He relied on the Fiji Court of Appeal decision in Timoci Momotu -v- The State Crim. App. AAU0018.1994 saying:

“6. The antecedent of the accused, supplied to the Court by the prosecution, does not entitle me, to refer this matter to the High Court for sentencing.

7. The antecedent of the accused appears to show, that he is a 1^st offender, as far as, sexual offences are concerned.

8. If the prosecution had wanted a penalty more than that allowed by the Magistrates’ Court, they should have used their powers under s.220 of the CPC at the outset.

9. It is not safe, given the legal difficulties presented by Timoci Momotu to rely on s.222(1) of the CPC when the antecedent of the accused, does not satisfy the test laid out in that case.”

The State’s submission, in respect of this decision, can be summarised thus. The learned Magistrate erred in failing to consider the facts of the case pertinent to character, other than the previous convictions, such as the relationship between the Respondent and the complainant, and the repeated sexual acts committed on her over a period of four years, which were not the subject of the charges. He further erred in failing to follow the sentencing guidelines of the Court of Appeal in Mohammed Kasim -v- The State Crim. App. No. AAU0021 of 1992 and of the High Court in Sisa Kanaveilomani Crim. App. No. HAA0015 of 2001S. These guidelines would have made clear to the learned Magistrate that he could not pass a sentence for a term less than five years imprisonment on each count.

Counsel for the Respondent submits that the Respondent was of good character, and that the learned Magistrate could not have committed to the High Court for sentence because he had already taken into account the relationship between the Respondent and the complainant in considering seriousness of the offence. She further submits that the sentence of 9 years imprisonment was correct in principle, and in line with other cases such as Umesh Kumar -v- The State Crim. App. No. AAU0009.1997S and Waisake Navunigasau -v- The State Crim. App. No. AAU0012.1996S.

The scope of s.222 of the Criminal Procedure Code has been ruled upon by the Court of Appeal. In Timoci Momotu -v- The State (supra), the magistrate referred the sentencing of an accused who had pleaded guilty to rape, to the High Court on the basis of the gravity of the offence. The sentence in the High Court was quashed by the Court of Appeal, which held that the discretion to commit must be made on the basis of the accused’s character and antecedents. At page 14 of the judgment the Court (per Thompson J.A. and Quilliam J.A.) said:

“It is inevitable that in any rape case the details of the offence will tell the Court something of the character of the accused. If that were all that was necessary to justify committal then there would be no need for the words under consideration in s. 222 (1) to have been included. We are, however, obliged to give those words some meaning. We can only conclude that they mean information of something additional to the physical details of the offence. A very clear example of this was to be found in R -v- King’s Lynn Justices (supra) where it appearat that two of the accused, although not previously convicted, had been stealing from their employer for years.”

In R -v- King’s Lustices, ex parte Carter and Others (1968) 3 ALL ERLL ER 358, Lord Parker C..J. held that “character and antecedents” included matters revealed at the hearing, such as a breach of trust by the accused, or evidence of a long pattern of conduct. At page 862, he said, in a passage cited and approved by the majority decision in Timoci Momotu (supra):

“As I see it, speaking for myself, the expression “character and antecedents” being as wide as it possibly can be, justices are entitled to take into consideration in deciding whether or not to commit, not merely previous convictions, not merely offences which they are asked to take into consideration, but matters revealed in the course of the case connected with the offence charged which reflects in any way on the accused’s character” (my emphasis).

Referring to a judgment of the Court of Criminal Appeal in R -v- Vallett (1951) 1 ALL ER 231 (per Goddard C.J.) Lord Parker went on to say that the power to commit was not limited to case where there were previous convictions or offences to be taken into consideration for sentencing:-

“Indeed his judgment is on the basis that the justices were entitled to commit once it had been shown that she had been a shameless thief, and also that she had committed those thefts while in a position of trust.”

It was on the basis of these decisions, that I found in Sisa Kanaveilomani -v- State Crim. App. No. HAA0015 of 2001S that a relationship of trust with the victim may be a relevant factor in considering committal under section 222 of the Criminal Procedure Code. In R -v- Lynn Justices, ex parte Brown (1973) 1 ALL ER 716, offences committed by a police officer of stealing from persons he had been employed to protect, were held to be sufficient grounds for committing for sentence. The police officer had no previous convictions. However, in R -v- Tower Bridge Magistrate ex parte Osman (1971) 2 ALL ER 1018, evidence of stealing from his employer, which was already alleged in the charge, was held not to be additional evidence of character because it was already reflected in the charge.

Turning therefore to the case before me, the learned Magistrate held that the Respondent was of good character and that committal was not justified. I do not consider that he erred in ignoring the two previous convictions of the Respondent. They are more than 20 years old and were rightly disregarded. However I consider that he did err in disregarding the fact that the Respondent had raped his daughter (which was not alleged in the charge) and that the Respondent had committed other offences of rape against his daughter which were not specified in the charges. According to the authorities I have cited, these factors were additional to the facts disclosing the offences charged and were both relevant to the discretion to commit.

Given the starting point for rape, which is 7 years imprisonment, the gravity of the offence, including the resulting pregnancy of the complainant would have justified a significant increase. Any reduction for the guilty plea could not have brought the sentence within the jurisdiction (on one count) of the Magistrates’ Court. Further the relationship between the Respondent and the complainant and the on-going nature of the offending in relation to incidents not alleged in the charges, should have led to committal.

I find therefore that the learned Magistrate erred in failing to take into account factors relating to character and antecedents, and in refusing the State’s application to commit to the High Court for sentence.

His decision is quashed and substituted with an order to commit to the High Court under section 222(1) of the Criminal Procedure Code.

Ground (c)

It follows that the sentence passed was a nullity. It is therefore not necessary to consider the appeal against leniency of sentence. Sentence will be considered afresh at a date to be fixed after consultation with counsel.

Summary

This appeal against the Magistrate’s refusal to order committal to the High Court for sentence, succeeds. The sentence is quashed and a date will be fixed for sentence by the High Court. The Respondent is to be remanded in custody until sentence is passed.

Nazhat Shameem
JUDGE

At Suva
12^th August 2002