Lutui v The State [2003] FJHC 80; HAA0032J.2003S (1 January 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL CASE NO: HAA0032 OF 2003

JONE LUTUI

V

STATE

JUDGEMENT

The Appellant appeals against his total sentence of 8 years imprisonment on the following charges:

FIRST COUNT

Statement of Offence (a)

INCEST BY MALE: Contrary to section 178 (1) of the Penal Code, Act 17.

Particulars of Offence (b)

JONE LUTUI between the 1st day of May 1996 to the 31st day of July 1999 at Samabula in the Central Division had carnal knowledge of ALUMITA BANIA who is to his knowledge his granddaughter.

SECOND COUNT

Statement of Offence (a)

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

Particulars of Offence

JONE LUTUI between the year 1996 and year 1997 at Samabula in the Central Division unlawfully and indecently assaulted ANA BULIMAIBAU by fondling her private parts.

The Appellant pleaded not guilty and the trial commenced on the 23rd of July 2002. Alumita Bania gave evidence that she was born in June 1984 and that the accused is her maternal grandfather. When she was 12 years old her grandfather first had sexual intercourse with her after he had asked her to massage his body. She said that he had sexual intercourse with her in 1996 and 1997, on more than 40 occasions. The sexual relationship continued in 1998 and on two occasions in 1999. In 1999, her mother reported the matter to the police.

Ana Bulimaibau gave evidence that she is the older sister of Alumita (PW 1). In 1996, on a Saturday when she had a pain in her chest, the accused fingered her vagina saying that he wanted to check if she was still a virgin.

Miriama Vakalaloma gave evidence that she was the mother of both girls, and the accused’s daughter. She said that in 1999 her mother told her that the girls had complained about the sexual assaults on them, and that she had reported the matter to the police.

A police officer, Epeli Vamosi then tendered the accused’s caution interview, in which he denied the allegations of incest and indecent assault. Another officer Sakenasa Leganimoce tendered the accused’s charge statement, in which the accused had refused to make a statement.

The accused gave unsworn evidence. He said he disagreed with the evidence of the two girls. The learned Magistrate then delivered his judgment. He warned himself on the dangers of convicting in the absence of corroboration, and although he considered the medical report to be corroboration in error, (it did not implicate the accused) he made it clear that he found PW1 to be a credible witness whose evidence was reliable even without corroboration. He convicted the accused on both counts and proceeded to sentence. In his sentencing remarks he said as follows:

“The accused as the complainants, grandfather, has seriously abused the trust his grandchildren placed on him. He knows that their father died in 1990 and it was absolutely essential for him to carefully look after his grandchildren.

Instead, he turned into a monster between the 1st of May, 1996 and 31st day of July, 1999 by having sexual intercourse with his granddaughter (i.e. complainant No 1) for more than forty to fifty occasions, she was aged between 12 and 15 years at the time of the abuse. The accused threatened the complainant not to tell anyone, otherwise he will kill her. In my view, the accused’s action on count No 1 deserved nothing less than the maximum sentence of 5 years imprisonment on count 1”.

He also sentenced the accused to 3 years imprisonment on count 2 and ordered that they be served consecutively.

The Appeal

The Appellant appeals against this sentence on the ground that it is excessive in total. In particular he says that the learned Magistrate failed to take into account his advanced years (he is 67 years old) and his illnesses. He says that he suffers from ischemic heart disease, diabetes and scrotum enlargement.

Sentence:

State counsel conceded that the sentences on each count were excessive and exceeded the tariff for incest and indecent assault. In her well- researched submissions she suggested that the indecent assault offence should have led to a sentence of between 18 months and 2 years and that the incest offence should have led to a sentence of about 3 years.

I agree. Indeed leave was granted to the Appellant to appeal out of time on the basis that his sentence appeared to be longer than the established tariff for these offences

The maximum sentence for incest is 7 years imprisonment. In Viliame Tamani v State Crim App No HAC0007.2003, I adopted and applied the guidelines for sentencing in incest cases in, Attorney- General’s Guidelines Reference (No 1 of 7989) 90 Cr App R 141. Where the victim is over the age of 16 years and there is no plea of guilty sentences should range from a nominal penalty to 3 years imprisonment. Where the victim is aged between 13 and 16 years sentences should range between 3 years and 5 years depending on the harm to the child and the degree of corruption involved. Aggravating factors are the physical or psychological harm, the period of time over which the offending took place, the use of threats or violence, the incest being accompanied by acts of indecent assault, the pregnancy of the victim, and the fact that there are several victims. Mitigating factors may be a plea of guilty and the attitude of the victim.

In Tamani, I sentenced the accused to 3 years imprisonment on 6 counts of incest. All sentences were to be served concurrently.

In this case the victim was only 12 years old when the incest commenced and continued over 3 years. However there is only one count on the charge sheet. State counsel said that it was a “rolled up” count and that, in effect the Appellant was being sentenced for a continuing course of conduct. Sentencing on the basis of a specimen count is possible if the accused accepts and adopts the other offences with which he has not been specifically charged. In Sikeli Koro v State Crim App No HAA 0048 of 2002l, I considered the difficulties in sentencing in a case where there is a specimen charge, In Clark v R (1996) 2 Cr App R (S), the English Court of Appeal said that in such a case, the sentence must not sentence on the basis that the offender was guilty of other offences unless he had admitted those other offences. The Court said, at p356:

“......... the appellant was not convicted of the offences making up the series, non did he admit them or request the Court to take them into consideration. Therefore, we are driven to the conclusion that this appellant, having been convicted on a single count particularising a single act, and not having admitted any offence beyond that can only be sentenced on the basis of that single act.”

In this case the Appellant pleaded not guilty and there was no admission of the other offences of incest. In the circumstances, he can only be sentenced on the basis that he committed one act of incest between 1996 and 1998. Taking therefore, the first act of incest, the victim was only 12 years at that time. The act of incest was accompanied by the fondling of breasts, and vagina, and by acts of oral sexual intercourse. It was also accompanied by threats of death.

In the circumstances a starting point of 5 years imprisonment would be justified. There are no mitigating circumstances other than the Appellant’s age and illnesses. The aggravating circumstances are the threats of violence, the accompanying indecent acts, and the age of the victim. In all the circumstances a sentence of 4 years imprisonment is appropriate.

The tariff for indecent assault in Fiji is 1 to 4 years imprisonment in Mark Mutch v State Crim App No AAU0060.1999, four year sentences for indecent assault in the case of an adult assaulting girls between the ages of 9 and 15 were upheld by the Fiji Court of Appeal. The indecent assault involved penetration of the vagina by the appellant’s finger.

In this case, the evidence was of “checking” the victim’s vagina for a few minutes. A starting point of 2 years imprisonment is appropriate. The aggravating factors are that the victim was the Appellant’s granddaughter, she was 14 years old at the time of the offence, and that she suffered pain as a result of the assault Mitigating factors are the Appellant’s age and his illness. I arrive at a sentence of 3 years imprisonment.

In principle these sentences ought to be served consecutively, because they are in respect of two separate and distinct offences. However, I consider a total of 7 years imprisonment to be excessive in total for a 67-year-old man with continuing health problems. As I said in Ratu Penioni Rokota v The State Crim App No HAA0060 of 2002, special sentencing considerations apply to the sentencing of the elderly. As D.A. Thomas said in his “Principles of Sentencing” at p 196:

“Recognition of age as a mitigating factor does not mean that imprisonment should never be imposed on elderly offenders and the Court has upheld sentences of imprisonment on men in their seventies. It is however a long- established principle that a sentence should normally be shortened so as to avoid the possibility that the offender will not live to be released.”

I therefore order that the sentences be served concurrently.

Result

The appeal against sentence succeeds. The sentence of 8 years imprisonment is quashed and is substituted by a sentence of 4 years imprisonment on Count 1 and 3 years imprisonment on count 2. They are to be served concurrently.

Nazhat Shameem
(JUDGE)