Mani v The State [2002] FJHC 160; HAA0053J.2002L (27 September 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0053 OF 2002L

Between:

SURESH MANI
Appellant

And:

THE STATE
Respondent

Hearing: 20th September 2002
Judgment: 27th September 2002

Counsel: Appellant in Person
Mr G. Allen for State

JUDGMENT

The Appellant appeals against conviction and sentence in respect of the following charges:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

SURESH MANI s/o PAPPAIYA between the 1^st day of January, 1999 and the 31^st day of December, 1999 at Nadi in the Western Division, had unlawful carnal knowledge of [the complainant] d/o RAM LINGAM without her consent

SECOND COUNT

Statement of Offence

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

Particulars of Offence

SURESH MANI s/o PAPPAIYA between the 1^st day of January, 1999 and the 31^st day of December, 1999 at Nadi in the Western Division had unlawful carnal knowledge of [the complainant] d/o RAM LINGAM without her consent.

The case was first called on 25^th April 2002 in the Nadi Magistrate=s Court. Before the charges were read, he was told that he had a Constitutional right to counsel. He said he did not want counsel but asked to have his brother-in-law present. His brother-in-law, one Mr Chandra Naidu was present in court during the proceedings.

The charges were then read and explained to the Appellant in Hindi. He said he understood them. He elected Magistrate=s Court trial, and pleaded guilty on both counts. The record contains the following statement by the Appellant:

AI have pleaded guilty to both counts on my own free will and was not influenced whatsoever by anyone to do so.@

The facts were then read by the prosecutor. They were that the victim, a 10 year old girl was the step-daughter of the Appellant. She lived with him and her mother at Navo, Nadi. In 1999, her brother became ill, and was admitted at the Lautoka Hospital. Her mother stayed at the hospital with him between the 1^st of October 1999 and the 31^st of December 1999. During this time, the Appellant went to the victim=s bed during the night and woke her up. He threatened her, telling her not to make a noise. He tied one of her hands to the frame of the bed, and the other to the shelf of the prayer stand. He tied a piece of cloth around her mouth and tied her legs apart to the bed frame. He then pulled her clothes off, committed several acts of indecency on her, and raped her. She screamed. She was overheard by a neighbour who called out from his house, asking what was happening. The Appellant said that the victim was frightened. He stopped raping her, untied her and went to sleep. The victim told her aunt about the incident the next morning.

One week later the Appellant repeated his act of rape. The victim again told her aunt about it the next morning. Her aunt went to Lautoka Hospital and told the victim=s mother about the complaint. When she returned to Nadi a week later, she asked her daughter about the incident. She told her mother what had happened. The Appellant was then confronted by his wife. He denied raping his step-daughter. He began to ill-treat her by beating her and chased her out of the house on 26^th March 2002. A policewoman who witnessed the incident took the victim home with her. On 21^st April 2002, the victim told the policewoman what had happened to her in 1999. The Appellant was interviewed under caution. In that interview, the Appellant admitted raping his step-daughter after tying her hands and feet with pieces of cloth, on two separate occasions.

The Appellant admitted these facts. In mitigation he said he was 31 years old and living with the victim=s mother in a de facto relationship. He said he had two children of his own, and that he was remorseful about the offences. He asked for forgiveness. His brother-in-law also addressed the court saying that: Awe admit what the Accused has done and there are two children to be looked after. Also they are schooling.@

The court after considering the Court of Appeal guidelines in Mohammed Kasim -v- State Crim. App. 21/93 and the guidelines in Billam (1986) 8 Cr. App. R(S), listed the aggravating features of the case as follows:

(i) the tender years of the victim;
(ii) the relationship between Accused and victim;

(iii) the violence used on the victim during the rape;

(iv) other acts of indecency carried out on the victim;

(v) the breach of trust;
(vi) the age gap between accused and victim.

He listed the mitigating factors as:

(i) the early guilty plea;
(ii) good character;
(iii) remorse;
(iv) the accused=s disadvantaged background.

The learned Magistrate was of the view that the appropriate sentence on each count was 7 years imprisonment. However because the Magistrate has limited jurisdiction, he imposed a sentence of 5 years imprisonment on each count to be served consecutively. In totality, the Appellant was sentenced to 10 years imprisonment.

The Appellant appeals against conviction and sentence on the following grounds:

(i) The Appellant was prejudiced by lack of counsel;
(ii) The plea was not unequivocal;
(iii) The facts did not disclose the offences;
(iv) The sentences should have been concurrent and not consecutive;
(v) The sentence offended the totality principle.

The conviction

It is correct that the Appellant was unrepresented at the hearing. Indeed, he was unrepresented at the appeal hearing. However he was clearly told of his right to counsel, and he just as clearly waived that right. In Korponay -v- Attorney-General of Canada (1982) 1 SCR 41, it was held by the Supreme Court of Canada (per Lamer CJ at p.202) that any waiver to the right to counsel must be -

A... clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights.@

The Appellant was told of his right to counsel. He waived his right, opting instead to have a relative present. The proceedings were conducted fairly, the Magistrate taking pains to ensure that no pressure had been put on the Appellant to plead guilty.

In the circumstances I am satisfied not only that the Appellant waived his right to counsel, but that he was not prejudiced by lack of legal representation and that his plea was unequivocal. Finally, the facts outlined clearly disclosed the charges including the victim=s lack of consent. Lack of consent and the Appellant=s knowledge of lack of consent, was apparent from the fact that he felt the need to tie her arms and legs to the bed frame, and to tie a piece of cloth around her mouth.

The appeal against conviction fails.

Sentence

The Appellant did not pursue his appeal against sentence with any conviction. At the hearing of the appeal, he simply said the sentence was too harsh.

State counsel invited me to enhance the sentence, saying that the facts of the case clearly called for a higher sentence. I agree that the sentence on each count was far below the tariff for the rape of children. In Mark Lawrence Mutch -v- The State Crim. App. AAU0060.1999 the Court of Appeal said that a sentence of 10 years imprisonment was the minimum appropriate in a case of the rape of a child on one count. If the Appellant had been sentenced in the High Court, he might have received a sentence in excess of 10 years imprisonment.

Section 319(2) of the Criminal Procedure Code provides:

A(2) At the hearing of an appeal whether against conviction or against sentence, the Supreme Court may, if it thinks that a different sentence should have been passed, quash the sentence passed by the magistrate=s court and pass such other sentence warranted in law, whether more or less severe, in substitution therefor as it thinks ought to have been passed.@

In Eri Mateni -v- State Cr. App. No. AAU0021 of 1998S, the Court of Appeal, in construing this section, said that the High Court could not increase the sentence beyond the jurisdictional limit of the Magistrate=s Court. The Court approved the decision of the Fiji Court of Appeal in DPP -v- Gaj Raj Singh 24 FLR 43 which was that:

AOn appeal against sentence from a Magistrate=s Court the Supreme Court may increase the sentence up to, but not beyond, the limit of the magistrate=s jurisdiction in that respect.@

Both decisions approved the following principles in relation to the jurisdiction of an appeal court, set out in Sohoni=s Code of Criminal Procedure 15^th Ed. p.2230:

AIt is a fundamental principle that every Court of Appeal exists, for the purpose, where necessary, of doing or causing to be done, that which each Court subordinate to its appellate jurisdiction should have but has not done, or cause to be done, and nothing further. Therefore the jurisdiction in appeal is necessarily limited in each case to the same extent as the jurisdiction from which that particular case comes. It is a proposition which cannot be disputed that all powers conferred upon an appellate Court, as such, must be interpreted as subject to the general rule above stated. All jurisdiction starts with the first Court and remains a constant factor throughout all subsequent stages of the suit or proceeding governed by it.@

For this reason, I am unable to enhance the Appellant=s sentence, although I agree with State counsel that the Appellant received a lower sentence than he deserved.

It follows that the Appellant=s appeal against sentence fails. The learned Magistrate=s sentencing remarks show that he was guided by principle, and that he considered all aggravating and mitigating factors. The sentences passed are not excessive and the appeal against sentence is unsuccessful.

Result

The Appellant=s appeal against conviction and sentence, is dismissed.

Nazhat Shameem
JUDGE

At Suva
27^th September 2002