State v Kumar [2003] FJHC 71; HAA0002J.2003S (4 April 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0002 OF 2003S

Between:

THE STATE
Appellant

And:

MANOJ KUMAR
Respondent

Hearing: 28th March 2003
Judgment: 4th April 2003

Counsel: Mr N. Lajendra for State
Respondent in Person

JUDGMENT

The Respondent pleaded guilty to the following charge in the Suva Magistrate’s Court.

Statement of Offence

INDECENT ASSAULT: Contrary to section 154(1) of the Penal Code, Cap 17.

Particulars of Offence

MANOJ KUMAR s/o Krishna Goundar on the 14th day of October 2002 at Suva in the Central Division, unlawfully and indecently assaulted a girl namely ASHNA NAMRATA SINGH d/o Virendra Singh aged 5 years.

He was sentenced on the 3rd of December 2002 to a 9 month sentence of imprisonment, suspended for 3 years. The Director of Public Prosecutions appeals against this sentence on the grounds that the sentence imposed was wrong in principle, and was manifestly lenient.

The charge was laid on the 17th of October 2002. The Respondent pleaded not guilty, and was remanded in custody. On 14th November 2002, he changed his plea to one of guilty. He was represented by counsel. The facts were that on the 14th of October 2002, the victim was 5 years and 7 months old. On that day, she accompanied her uncle to visit neighbours to watch a video. The Respondent who is 30 years old, was also there watching the video and drinking beer. At 11.45pm the victim went outside to urinate. The Respondent followed her and took her into a tool room. He turned off the outside light, made the victim lie down, touched her breasts, pulled off her pants and rubbed his fingers over her vagina. The victim’s father and uncle started to look for her. They checked the tool room and found it locked. They then saw the accused running away from the tool room, and found it locked. They found the victim inside crying. She told her uncle what had happened and the matter was reported to the police. The victim was examined by a doctor, who found a small abrasion on the hymen, with minimal bleeding. The history related to the doctor by the victim was that the Respondent had forced her onto the bed in the tool room, closed her mouth with one hand, pulled her shorts down and took off his own shorts. He then punched her on the stomach, thigh and chest and penetrated her vagina with two fingers. He fondled her private parts, and kissed her.

The Respondent admitted the offence when he was interviewed by the police. He admitted the facts outlined in court. The record shows that he read the medical report, as did counsel.

In mitigation, counsel submitted that he had not intended to commit the offence but had followed her “to check she had completed urination.” She said that he was married with two daughters and expressed remorse. He had one previous conviction in 1991, but was treated as a first offender.

The learned Magistrate then made the following sentencing remarks:

“Accused is a first offender. He has pleaded guilty in the first instance. He appears remorseful. He was remanded in custody pending sentence. His term in remand will have been a lesson to him. He has also assisted the court in pleading guilty in the first instance. Persuasive mitigation by counsel from Legal Aid has assisted the accused. He is severely warned for the offence. In consideration of the principles of sentencing including deterrence, the accused is sentenced to 9 months imprisonment suspended for 3 years with effect from today.

Suspended sentence explained.”

In his comprehensive, and well-researched submissions, counsel for the State outlined the principles of sentencing in cases of the sexual assault of children. He argued firstly that section 29(3)(a) of the Penal Code, expressly provided that a sentence must not be suspended in cases of indecency towards children. Secondly he submitted the sentences for indecent assault in Fiji ranged from 1 year to 4 years imprisonment, and that relevant factors determining sentence were the age difference between offender and victim, the penetrative nature of the assault, and any betrayal of trust. He suggested that a 3 year sentence would reflect the nature of the offending in this case.

The Respondent asked for his non-custodial sentence to remain, saying that a custodial sentence will result in hardship for his family.

The suspended sentence

Section 29(3) of the Penal Code provides:

“A court which passes a sentence of imprisonment for a term of not more than six months in respect of one offence shall not make an order under the provisions of subsection (1) where –

(a) the act or any of the acts constituting that offence consisted of an assault on or threat of violence to another person or having or possessing a firearm, an imitation firearm, an explosive or an offensive weapon or of indecent conduct with or towards a person under the age of sixteen years.”

This subsection appears to apply to prevent the suspension of a sentence, where the sentence of imprisonment is for less than 6 months, and the offence committed is one of indecency to children. Fatiaki J in DPP –v- Saviriano Radovu Crim. App. No. HAA0006 of 1996 considered this provision in an appeal by the State against a suspended sentence imposed for the indecent assault of an 8 year old child. In that case the sentence imposed was 9 years imprisonment suspended for 18 months and a fine of $30.00. His Lordship held that whilst it appeared that the limitation to section 29 applied only to sentences below 6 months imprisonment:

“I cannot accept that in expressly excluding such acts from the operation of subsection (1) of section 29, the legislature was concerned only with the length of sentence imposed and not with the nature or type of offence committed. Quite plainly it was. If this were not so, one would have the rather extraordinary situation where serious offending such as Attempted Armed Robbery, where a prison sentence under 2 years was imposed could technically be suspended, whereas a misdemeanour of Being in Possession of an Offensive Weapon in a Public Place could not be suspended if the trial magistrate imposed a sentence of less than 6 months.”

Further, at page 7, he pointed out that the entire purpose of the limitations imposed by section 29(3)(a) could be circumvented by imposing a sentence longer than 6 months in order to suspend it. He held that the whole of section 29 must be read together and that a court was therefore prevented from suspending the sentence of any offender convicted of the offences set out therein, irrespective of the length of the sentence.

On a careful reading of section 29(1)(a) of the Code, the reference to sentences of less than 6 months imprisonment is difficult to understand. Further, whilst section 39 of the Criminal Justice Act 1967 (U.K.) had a similar provision, (although as Fatiaki J said in Saviriano Radovu (supra), with quite a different effect) its successor, the Powers of Criminal Courts Act 1973 (U.K.) has no such limitation. Further section 118 of the Powers of Criminal Courts (Sentencing) Act 2000 provides as follows:

“(4) A court shall not deal with an offender by means of a suspended sentence unless it is of the opinion –

(a) that the case is one in which a sentence of imprisonment would have been appropriate even without the power to suspend the sentence; and

(b) that the exercise of that power can be justified by the exceptional circumstances of the case.”

The courts have interpreted the phrase “exceptional circumstances” strictly (R –v- Robinson 14 Cr. App. R(s) 559, A-G’s Reference (No. 5 of 993) (R –v- Hartland 15 Cr. App. R(s) 201) and there can be no doubt that the general limitation of the statutory availability of the suspended sentence, originated from public dissatisfaction with perceived over-use of the suspended sentence.

With respect, such a general limitation on section 29 of the Penal Code, would be far more useful, then the ambiguous and anomalous provisions of section 29(3)(a).

For the purposes of this appeal, I find that the purpose of the sub-section is to limit the use of suspended sentences in cases of, inter alia, offences of indecency against children, and that to that extent the suspended sentence imposed in this case, although it exceeded 6 months in length, offended that purpose.

Sentencing principles generally

Even, in the absence of section 29(3)(a) however, the sentence was wrong in principle. There are now many decisions of the High Court and Court of Appeal which have allowed for the setting of a tariff for indecent assault cases. Sentences range from 1 year to 4 years, and where the victim is a child, the starting point is 3 years imprisonment. I upheld that starting point in Apisai Bavadra –v- The State Crim. App. No. HAA0006 of 2003S. In that case a 45 year old man rubbed his fingers over the vagina of a 9 year old child. A sentence of 2 years imprisonment was imposed and upheld. In Robin Abhinesh Lal –v- The State Crim. App. No. HAA0029 of 1998, Surman J upheld a sentence of 18 months imprisonment imposed for the rubbing of the victim’s vagina with the offender’s penis. The victim was 3 years old, the offender was 18.

In Mark Mutch –v- State Crim. App. No. AAU0060.1999, sentences of 4 years imprisonment each on separate counts of indecent assault which involved the fondling of breasts and the inserting of fingers into the vagina of the victims, were upheld by the Court of Appeal. As I said in Ratu Penioni Rakota –v- The State Crim. App. No. HAA0068 of 2002, aggravating factors in the indecent assault of children include the nature of the assault, whether violence was used, whether weapons were used, the length of time over which the assaults took place, the betrayal of the child’s trust in a family member or friend, and a large disparity in age between victim and offender. Mitigating factors include a plea of guilty, previous good character and remorse.

In this case, the Respondent was rightly treated as a first offender, and credit was given for the guilty plea. However, the aggravating circumstances were the assaults on the victim, the penetration of her vagina with two fingers and the age of the child compared with the age of the Respondent. With a starting point of 3 years imprisonment, reduction for the mitigation, and an increase for the aggravating factors, I arrive at a sentence of 3 years imprisonment.

The suspended sentence was therefore wrong in principle and manifestly lenient.

Conclusion

This appeal is allowed. The Respondent is sentenced to 3 years imprisonment to commence today.

Nazhat Shameem
JUDGE

At Suva
4th April 2003