Koroi v The State [2002] FJHC 152; HAA0055.2002S (23 August 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA0055 OF 2002
{ Nausori Magistrate’s Court Crim. Case No.: 71 of 2002 }

BETWEEN:

ASERI KOROI
APPELLANT

AND:

THE STATE
RESPONDENT

Mr. E. Veretawatini - For Appellant
Mr. V. Vosarogo - For Respondent

JUDGMENT

BACKGROUND:

This is an appeal against both conviction and sentence. The appellant was charged with five counts of INCEST. The alleged offences occurred over a period of thirteen months from September 2000 to October 2001. The first four offences allegedly occurred at Korovou in the Central Division. The fifth occurred at Suva in the Central Division.

The appellant was brought before Suva Magistrate’s Court on 22^nd February 2002 where the charge was read to him. He pleaded guilty. The facts were not outlined. The case was adjourned to 25^th February 2002 for facts to be outlined and for sentencing. The accused was told to get a lawyer if he wanted to. On 25^th February 2002, the case was again adjourned to 26^th February 2002.

This Court was told by Mr. Vosarogo, Counsel for the State that the typed facts were not ready and that was why the case was adjourned twice.

On 26^th February 2002, copy of typed facts was given to the accused. The appellant admitted the facts.

FACTS:

The facts briefly were that the appellant is aged 42 years and is a taxi driver. The complainant is aged 22 years and is a Secretary. The complainant is appellant’s daughter from a previous de facto relationship and had come to live with the appellant and the stepmother. The appellant admitted to having sexual intercourse with the complainant on five occasions knowing that she was his daughter. The appellant was caught red-handed having sex on 22^nd October 2001.

The complainant gave birth to a baby boy on 15^th November 2001.

In mitigation the accused said he was aged 42 and married. He said we all have weaknesses in life and that he was weak on this occasion.

The appellant was not represented in the Magistrate’s Court.

The grounds of appeal are as follows –

(a) That the learned trial Magistrate erred in law and in fact in not giving any or any time to the Appellant to organize his case before the plea of guilty, which was unreasonable and unfair thereby giving rise to a miscarriage of justice;

(b) That the learned trial Magistrate erred in law and in fact when he failed to consider a denial of the Appellant’s Constitutional right to a lawyer under Section 27(1)(c) of the 1997 Constitution of the Republic of Fiji;

(c) That the learned trial Magistrate exceeded his jurisdiction when he presided upon the Appellant’s case when the proper forum was the Nausori Magistrate’s Court, vide Nausori Criminal Case Number 71/02, hence there has been a substantial miscarriage of justice;

(d) The learned trial Magistrate erred in law and in fact in sentencing the Appellant in the manner and form which he has done in respect of the subsequent Counts especially when there is a disparity of sentencing between Counts 1 and 2, hence there has been a miscarriage of justice;

(e) That the sentence passed by the learned trial Magistrate is harsh and excessive in any event;

(f) That the appellant reserves the right to argue and/or file further or revised Petition of Appeal after perusing the copy of the Court record.

RIGHT TO COUNSEL:

The first ground of appeal is that the appellant was not given enough time to organize his case and the second ground is that the appellant was not accorded his constitutional right to counsel. The two grounds overlap and may be conveniently dealt together. The records disclose that the appellant was told to get a counsel AFTER he pleaded guilty.

Under Section 28(1)(d) of the Constitution the accused has the right to be represented by counsel. Most people who appear in Court would be unaware of this right and it is incumbent upon the trial court to inform the persons of this right. Even though the Constitution is silent as to what point in time the accused person ought to be informed of this right to counsel (RTC), commonsense dictates that it should be done BEFORE the charge is put to the accused and plea taken. The accused’s answer should also be recorded.

In SIMIONE RAURA v. THE STATE – Criminal Appeal 59 of 2001 unreported judgment Justice Shameem said that

"the numbers of appeals against convictions would be considerably reduced if Magistrates informed unrepresented accused persons of their constitutional right to counsel. This right should not be taken lightly by the court system, and the right cannot be assumed to be waived, when the Magistrate has not told the accused of it before the plea was taken".[underlining is mine]

In the event an appellant is not informed of his right then the appellate court looks at the record with care to see that there was no prejudice caused to the appellant.

The issue of right to counsel (RTC) is of great significance to the Magistrate’s Court as all accused persons pass through that court.

Section 28(1) reads –

"Every person charged with an offence has the right". It then goes on to specify those rights including the right to counsel. The question is whether the Right to Counsel is confined to charges under the Penal Code or extends to other offences too. This answer depends on the meaning of the word ‘offence’.

Prima facie an offence is equivalent to a crime – per Collins J. in DERBYSHIRE COUNTY COUNCIL v. DERBY 1896 2 Q.B. 57 at 58. The Dictionary of English Law by Earl Jowitts says ‘the word offence has no technical meaning in English Law, but it is commonly used to signify any public wrong, including, therefore not only crimes or indictable offences, but also offences punishable on summary convictions ... it is used as a comprehensive term to cover anything for which a court can inflict punishment’. In section 2 of the Interpretation Act Cap. 7 "offence" is defined as "any crime, felony, misdemeanour or contravention or other breach of, or failure to comply with, any written law for which a penalty is provided". In the Penal Code it is defined as "an act attempt or omission punishable by law".

These definitions suggest that if penal consequences follow from certain acts or omission, then that particular act or omission is to be treated as an offence. One has to look at the consequences to the accused of a conviction for such act or omission. If it could result in payment of fine or loss of liberty in any way or any other type of penalty, then the act or omission is an offence. The amount of fine or level of penalty is immaterial. Accordingly even traffic cases are caught by the provisions of this section. Accordingly the right to counsel warning ought to be given in traffic cases as well. This may be, or I must say will be a huge burden on an already overburdened Magistrate’s Court where at times over one thousand cases are called on a single day. However, this constitutional requirement cannot be by-passed.

WAS THERE PREJUDICE:

The appellant submits that the failure of the learned Magistrate to inform the appellant of his right to counsel before the plea was taken resulted in prejudice. The records show that the charge was read to the accused and he pleaded guilty. This is not a complicated charge to understand. If a person has sexual intercourse with one’s own child the offence is proven. There is nothing technical about that. Its elements are easy to understand. The appellant was asked to engage a counsel after his plea. Facts were not outlined till three days later. He had ample time to consider his plea or get counsel. When the facts were outlined, he admitted the facts. In his mitigation he said like others he suffered from moments of weakness in committing the offence. The facts were simple. The admission was without any reservations. If the appellant had disputed the facts, the guilty plea would have been vacated and a not guilty plea entered with a trial following in the normal process. There was an unequivocal plea of guilty in the present case. The procedure normally followed and which should be followed by Magistrate’s courts in cases where an unrepresented illiterate person pleads guilty is to treat the plea as provisional only and defer the final acceptance until the facts have been outlined and admitted by the accused. It is evident from the record that this is precisely the approach which the learned Magistrate took. The absence of counsel did not result in any prejudice to the appellant. It is not every failure to inform an accused person of right to counsel which would lead to conviction being set aside. One has to show that such failure resulted in prejudice to the accused or caused miscarriage of justice before a conviction is set aside.

INCORRECT PROCEDURE – SECTION 206 OF CPC:

The appellant also complained in its submissions that the procedure followed by the learned Magistrate was very strange and set a dangerous precedent to be relied upon in any criminal case. I find this submission very strange indeed in view of the provisions of Section 206(1) and (2) of the Criminal Procedure Code. This section sets out the steps to be taken by the Magistrate’s Court when an accused charged with an offence comes to court.

Section 206 reads –

"(1) The substance of the charge or complaint shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth of the charge.

(2) If the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him, and pass sentence upon or make an order against him, unless there shall appear to it sufficient cause to the contrary."

The learned Magistrate followed this procedure of reading and explaining the charge to the accused who admitted the charge; there was outline of facts followed by admission of facts, mitigation conviction and sentence.

Counsel for the appellant also submitted that the records do not disclose that the facts were read to the appellant. The records show that a copy of typed facts was given to the appellant. Mr. Vosarogo who appeared before the Magistrate Court and in this court confirmed that the facts were read out in court. I accept his word as that is the normal and well understood procedure in the Magistrate’s Court of reading facts and giving a typed copy to the accused. The records show the appellant admitted the facts. The grounds of appeal too make no reference to facts not being read to the accused. So this ground fails.

POLICE PRESSURE TO PLEAD GUILTY:

Counsel for the appellant also submitted that on strength of VILIKESA BALECALA v. THE STATE – Criminal Appeal 62 of 1996 that the learned Magistrate should have asked the appellant if he was pressured or induced into pleading guilty. The facts of VILIKESA BALECALA are unusual in that three accused were jointly charged and they all alleged that they were pressured by the police into pleading guilty. They pleaded guilty at a special sitting of the court on a Saturday to the offence of attempted rape. The facts as outlined did not disclose any offence of attempted rape against two of the co-accused of the appellants. However, they were convicted. The conviction of those two co-accused were set aside. The appellant’s guilty plea was vacated and case remitted to the Magistrate’s Court.

The circumstance in that case pointed to something improper. There is no allegation of improper police conduct or facts not disclosing an offence here. Courts would be bogged down into a meaningless and irrelevant enquiry if each time an accused appeared, they were to enquire into police conduct. I find no merit in the ground.

SANCTION OF DPP:

The appellant’s submissions that the Director of Public Prosecution has not given consent to institution of five counts of incest are technical and devoid of merit. The records show that the Director of public Prosecutions had sanctioned that the appellant be charged for the offence of incest without specifying the number of counts. All five counts are in respect of incest.

LACK OF JURISDICTION – WRONG FORUM:

The next ground was that the Suva Magistrate’s Court had no jurisdiction to hear this case as the offence took place in Korovou and the Nausori Magistrate’s Court was the proper forum. I note that the offence in one of the counts took place in Suva.

Generally speaking an offence is tried in the court closest to the place of commission of offence. This is because witnesses are from that area and enquiries are conducted by police from that area. It is for the convenience of prosecution. Section 61 of the Criminal Procedure Code relates to place of inquiry or trial. It reads –

"Subject to the provisions of Section 59 and to the powers of transfer conferred by Section 70 every offence shall ordinarily be inquired into and tried by court within the local limits of whose jurisdiction it was committed, or within the local limits of whose jurisdiction the accused was apprehended, or is in custody on a charge for the offence, or has appeared in answer to a summons lawfully issued charging the offence."

The appellant submits the entire proceedings are invalidated because they were heard in Suva Court. The answer to that submission lies in Section 341 of the Criminal Procedure Code, which is a "savings" section designed to meet technical procedural objections to forum. It reads –

"No finding, sentence or order of any criminal court shall be set aside merely on the ground that the inquiry, trial or other proceeding, in the course of which it was arrived at or passed, took place in a wrong district or other local area, unless it appears that such error has in fact occasioned a failure of justice."

The section is very clear. Unless the appellant can show that the failure to conduct proceedings in Nausori Court occasioned a failure of justice, he is not entitled to succeed. The onus is on him to show failure of justice. Rarely if ever an appellant who has pleaded guilty would succeed in showing a failure of justice. A failure of justice may occur where an accused with limited means is tried in an incorrect district and because of his limited means he is unable, due to expenses involved, to bring his witnesses to court and is unable to put forward his defence properly. The mere hearing of an action in a wrong court is by itself not a sufficient reason to set aside a conviction. This ground therefore fails.

SEVERITY OF SENTENCE:

The appellant also appealed against severity of sentence of nine years imprisonment for five counts of incest. For purposes of sentencing, the law of incest differentiates in sentence depending on whether the victim is under thirteen years of age or over thirteen years of age. If the victim is below thirteen years, the maximum penalty is life imprisonment; if above thirteen years, the maximum penalty is seven years imprisonment.

Incest is a sexual offence which is an affront to community standards of decency. It arouses outrage among members of society who normally ask for extreme forms of punishment.

Cases of incest are now raising their heads before the courts so some consideration on approach to be taken on sentencing is perhaps due. There has to be a uniformity of approach to be taken in sentencing not uniformity in sentences as factors in every case differ with respect to background of the accused, the victim and the circumstances of the offence so a uniform sentence in all cases is impossible and would cause injustice in many.

In England the guideline case on incest is ATTORNEY GENERAL’S REFERENCE NO. 1 of 1989 (1990) Crim. App. R 141.

According to Lord Lane, "it is stating the obvious to say that the gravity of the offence of incest varies greatly according, primarily, to the age of the victim and the related matter namely the degree of coercion or corruption".

He divided the incest cases into three broad categories according to age of victims -

"(1) Where the girl is over 16.

Generally speaking a range from three years’ imprisonment down to a nominal penalty will be appropriate depending in particular on the one hand on whether force was used, and upon the degree of harm, if any, to the girl, and on the other the desirability where it exists of keeping family disruption to a minimum. The older the girl the greater the possibility that she may have been willing or even the instigating party to the liaison, a factor which will be reflected in the sentence. In other words, the lower the degree of corruption, the lower the penalty.

(2) Where the girl is aged from 13 to 16.

Here a sentence between about five years and three years seems on the authorities to be appropriate. Much the same principles will apply as in the case of a girl over 16, though the likelihood of corruption increases in inverse proportion to the age of the girl. Nearly all the cases in this and in other categories have involved pleas of guilty and the sentences in this category seem to range between about two and four years, credit having been given for the plea.

(3) Where the girl is under 13.

It is here that the widest range of sentence is likely to be found. If one can properly describe any case of incest as the "ordinary" type of case, it will be one where the sexual relationship between husband and wife has broken down; the father has probably resorted to excessive drinking and the eldest daughter is gradually, by way of familiarities, indecent acts and suggestions made the object of the father’s frustrated sexual inclinations. If the girl is not far short of her thirteenth birthday and there no particularly adverse or favourable features on a not guilty plea, a term of about six years on the authorities would seem to be appropriate. It scarcely needs to be stated that the younger the girl when the sexual approach is started, the more likely it will be that the girl's will was overborne and accordingly the more serious would be the crime."

The aggravating features in a case like this are –

(a) any evidence of physical or psychological harm
(b) length of time over which the offence occurred
(c) any violence threatened or used
(d) any accompanying perversions
(e) any resulting pregnancy

The mitigating factors would be –

(a) plea of guilty
(b) was incest due to genuine affection or sexual gratification
(c) had the victim seduced the offender
(d) did the victim have previous sexual experience.

In the case before Lord Lane, the accused had pleaded guilty to three counts of incest and one count of indecent assault. Incest had started when the daughter was 11 years old and continued for four or five years with a frequency of three or four times a week. A sentence of 6 years imprisonment was imposed.

In R. v. Stagg 1980 2 Cr. App. Rep (S) 53 a case involving incest, buggery and indecent assault of a daughter, commencing when she was 10 or 11 years old, a sentence of 12 years imprisonment was reduced to 4 years on grounds that long deterrent sentence have no effect on crime of this kind.

Thomas in "Principles of Sentencing" second edition at page 118 commenting on sentences for incest says –

"Sentences of five years imprisonment or longer are likely to be upheld where the father deliberately exploits his position in the family by systematically seducing his daughter over a period of time, usually by a series of acts of increasing indecency until the process is completed."

The New Zealand Court of Appeal in R. v. B (an accused) [1983] NZCA 85; 1984 1 NZLR 261 had before it a case of an accused who had pleaded guilty to series of sexual offences of attempted sodomy and attempted incest and five counts of indecent acts. The daughter was aged 10 years. The headnote to this case reads "while a sentence should be heavy enough to mark society’s concern and rejection of this sort of conduct, deterrent sentences were unlikely to have much influence on others. Very long sentences, crushing for the individual offender, had to be reserved for very bad cases". The sentence was reduced from one of eight years imprisonment to five-year term.

What transpires from these cases is that one must not in sentencing in cases of incest allow one’s sense of natural revulsion and populist urgings for severe sentences to overshadow objectivity. The sentence must suit the facts of the case.

In WAISAKE NAVUNIGASAU v. THE STATE – Criminal Appeal No. 12 of 1996 unreported judgment of Fiji Court of Appeal the complainant was 17 years old. The appellant was convicted of one count of rape and three counts of incest. He was sentenced to a term of nine years imprisonment for rape and to five years on each count of incest, which were to be served concurrent to the sentence for rape.

In the present case the appellant was convicted of five counts of incest which occurred over a period of time. It is not an isolated incident but rather persisted in. The girl was 22 years of age and therefore not a young girl. The aggravating feature of this case is that the victim became pregnant and gave birth to a child as a result of appellant’s action. It is also noted that in respect of one of the counts he took the complainant to a motel showing an element of planning. The learned Magistrate looked at the maximum penalty prescribed by statute. He referred to the totality principle of sentencing and considered a nine-year term as justified. His attention was not drawn to Waisake Navunigasau.

The conviction on all counts stands.

Having considered the various authorities referred to earlier; the nine-year sentence is indeed excessive. The sentence is reduced to one of five years imprisonment on each count all concurrent. The appellant will accordingly serve a sentence of five years imprisonment with effect from 26^th February 2002.

{ Jiten Singh }
JUDGE

At Suva
23^rd August 2002