Rokowaqa v The State [2004] FJHC 101; HAA0037.2004 (11 May 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA037 OF 2004

BETWEEN:

ETONIA ROKOWAQA
Appellant

AND:

STATE
Respondent

Counsel:
Appellant - In Person
Mr. N. Lajendra - for the State

Date of Hearing: 5th May, 2004
Date of Judgment: 11th May, 2004

JUDGMENT

On the 7th of January, 2004 the appellant was charged with a representative offence of defilement of a girl between 13 and 16 years of age. He pleaded guilty immediately and was subsequently sentenced to 4 years imprisonment. He appeals against sentence.

Particulars of the Offence

The victim who was aged 15 was a resident of St. Christopher’s Home, an Orphanage run by the Anglican Church at Nasinu.

The appellant was employed at the home. He was in a trusted position. Between August and December 2002 on a number of occasions he had sexual intercourse with the young complainant. The sexual relationship was discovered when it was found that the complainant was pregnant. Her baby was adopted.

Grounds of Appeal

In a written petition of appeal the appellant specifies four grounds:

1. A failure by the Court to give him a full discount for an early guilty plea.

2. A failure by the Court to recognise that he was a first offender.

3. A complaint that the Director of Public Prosecutions and Legal Aid Counsel were absent at the reading of his sentence.

4. A mitigation that the welfare of his five year old daughter and an unemployed wife should be considered.

The Appeal

The appellant appeared unrepresented. He wished the proceedings to be translated for him into the Fijian language and this was undertaken by my Clerk. He was provided with a warning concerning his constitutional rights to representation and the availability of Legal Aid. He elected to continue with the sentence appeal today unrepresented and without the benefit of furthering his legal aid application.

The appellant originally filed a written petition of appeal and each of the 4 grounds were reviewed with him. He relied on those and apart from emphasising the fact that he was a first offender who was worried about his family he did not advance his submissions before me beyond the points contained in the petition.

The State filed helpful written submissions. Mr. Lajendra properly conceded that the learned magistrate’s sentence was not properly constructed. However, he submitted the State’s position was that a sentence of 4 years imprisonment was not excessive or unduly harsh.

Counsel reminded the Court that the maximum penalty for this offending was increased in October 2003 from 5 years to 10 years. It was submitted that Parliament had indicated by this amendment that the crime was a prevalent and serious one.

The Sentence

Perhaps not unreasonably the written sentencing decision concentrates on the extreme aggravating feature of this offending: breach of trust. The decision fails to find an appropriate starting point for the offending. It does not record matters of aggravation and mitigation against that starting point. It gives the impression that the learned magistrate was perhaps overborne by the circumstances of the offending. That is a completely natural response where a 40 year old man grossly breaches the trust of an immature and vulnerable young girl to fulfil his sexual cravings.

The sentencing decision appropriately records deterrence as the prime motivation. Regrettably the decision lacks structure and balance.

Decision

My learned sister Justice Shameem in the decision of the State v Roqica & Others Criminal Appeal No. HAA 037 of 2002S provides a useful analysis of the sentencing tariff for this type of offending. In that decision at page 5 by reference to her earlier sentencing appeal of Donumainasuva v the State Criminal Appeal No. HAA0032 of 2001 her honour found that sentences for the defilement of girls between the ages of 13 and 16 range from a suspended sentence for “virtuous friendship” offending to 3 to 4 years imprisonment where the offender is older and in a trusted position in relation to the victim.

In Roqica (supra) the offenders were not in a relationship with the victim. They were young men who set out to exploit the sexual willingness of a very young girl. There was no evidence of virtuous friendship. A starting point of 2 years imprisonment was thought appropriate. When aggravating and mitigating factors were applied an effective sentence of 12 months imprisonment was imposed. This was subsequently discounted to reflect time served on the original sentence of binding over.

The increase in penalty will be reflected in an increase in both the starting points and terms of imprisonment imposed. The maximum sentence for this offence is now 10 years imprisonment. In this case the leaned magistrate was dealing with a representative charge of sexual exploitation of a 15 year old girl by an older man over a period of several months. This must call for a starting point of 4 years imprisonment.

In my analysis this case was more serious then Donumainasuva and Roqica.

The aggravating circumstances are that the offending occurred over three months. It was perpetrated by a man who at 40 years of age was 25 years the senior of his child victim. The child complainant fell pregnant to him. There was a gross and inexcusable breach of trust that can be considered as nothing less than sexual exploitation and abuse of his young victim. The victim was entitled to look upon him as a trusted member of the church community there to provide protection, care and guidance. Instead he preyed upon her vulnerability. I find the aggravating features would entitle the Court consider at the minimum the addition of 12 months imprisonment to the starting point.

In mitigation the appellant claimed he was a 40 year old subsistence farmer with one child. He said he was separated at the time of the offence. He said he was in a relationship with the child victim. He was sorry for the offending but wanted to see the child. He asked for leniency. He was a first offender and he co-operated with the police. He pleaded guilty at the earliest opportunity once the correct charge had been established. In those circumstances I would have allowed him an 18 month discount for the mitigation.

In the end this analysis would see an available sentence of 3 years and 6 months jail.

In my view on a sentencing appeal the Court is required to consider whether the Judge at first instance was not only wrong in principle but by that error imposed an excessive sentence or one that was unduly harsh. I have come to almost the same conclusion as the learned magistrate about the appropriate length of sentence. The difference in sentence is a mere 6 months. In my view that is not a significant difference. I cannot say that such a difference demonstrates undue harshness, or excess. In those circumstances, it would be wrong to interfere with the sentence.

Conclusion

Although I find that the original sentence was improperly structured, I nonetheless cannot disagree with the ultimate term imposed. I cannot find it to be unduly harsh or excessive and accordingly the appeal is dismissed.

Gerard Winter
JUDGE

At Suva
11th May, 2004