Seruitata v The State [2004] FJHC 20; HAA0062J.2003 (24 August 2004)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0062J.2003B

BETWEEN:

APENISA SERUITATA
APPELLANT

AND:

THE STATE
RESPONDENT

Appellant In Person
Counsel for the State: Ms Sofia S. Shah

Date of Hearing: 27 July, 2004
Date of Judgment: 24 August, 2004

JUDGMENT

The Appellant was charged with Indecent Assault at the Labasa Magistrate Court on 5 May 2003. The Charge read as follows:

Statement of Offence

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

Particulars of Offence

APENISA SERUITATA, on the 25th day of July, 1999 at Vunivutu, Wainikoro in the Northern Division, unlawfully and indecently assaulted SERESEINI QATIA.

The facts of the case are as follows. On 25 July 1999 (a Sunday) at Vunivutu village at approximately 2 p.m., the complainant who had just turned 7 years old, returned to her home from Sunday School. The complainant’s father was asleep in the bedroom. The Appellant, the complainant’s uncle, was sleeping in the living room. The complainant brought out from the bedroom into the living room a photo album and began looking through it. The Appellant who now was awake, called the complainant to come over to him, and while reluctant at first did eventually walked across to him. The Appellant, after lifting the complainant onto him, began fondling her including touching her breasts and vagina. Her attempt to break free was thwarted by the Appellant’s tight hold over her. Eventually, the complaint’s father woke up and saw the assault on his daughter. The matter was reported to the police and the Appellant was formally charged, after being interviewed by the police.

On 30 July 2003, the Appellant, after pleading guilty to the charge, was sentenced to 3 years imprisonment.

Grounds of Appeal

The initial ground was on the sentence alone namely, that it was harsh and excessive. Later, the Counsel for the Office of the Legal Aid Commission intervened and filed additional ground on conviction.

The Appeal

This appeal first came before Winter J. on 23 March 2004. He had commenced hearing it. There was however the additional ground on conviction raised by Counsel from the Legal Aid Commission on behalf of the Appellant, and specifically the question of whether the Appellant had been advised of his right to be legally represented as provided for under section 28 (1) (d) of the Constitution. There did not appear to be any evidence from the Court records that this was done. However, the State pointed out that the Appellant was in fact being re-charged for the same offence because of non-appearances on bench warrant previously and it was possible that there had been compliance with the Constitutional provision at the earlier hearing. Winter J, in adjourning the hearing to allow the Appellant’s earlier Court appearance and records to be look into with the above purpose, nevertheless noted the reservation by the Appellant Counsel, that the long delay would at any rate probably necessitate a further Constitutional warning.

While this essentially is a part-heard matter, I am satisfied that I can properly proceed to hear it, given that the substance of the appeal is yet to be argued. I also now have the benefit of perusing the earlier Court record.

At today’s hearing, the Duty Solicitor for the Office of the Legal Aid Commission informed the Court that the administrative process for the legal representation of the Appellant was still to be completed. However, the Appellant, after having been fully explained of his rights, decided to waiver them and proceed on his own.

Appeal Against Conviction

The Appellant first submitted that the opportunity to consult a lawyer of his own choosing of being advised of his right to seek legal assistance, was denied him by the learned Magistrate, before the charge was put to him. Certainly, this appears to be the case in respect of the second of the Applicant’s two appearances before the Court. As to his first appearances between July 1999 and March 2001, I have also concluded, after perusing the records, that the learned Magistrate had not advised the Appellant of his rights as required under section 28 (1) (d) of the Constitution.

The right to legal representation under the Constitution was fully discussed in this Court’s judgment in Esala Vunigiagia v. The State, Labasa Crim. App. No. HAA0051.2003. Emphasising the need as well as the importance of the accused being informed of this, the Court added (at p.5).

“It is of vital importance therefore that the accused is not only given the assistance that maybe available to him or/her, but more importantly, that in the first instance, he or she be informed and is made to appreciate the existence of the right to not only be legally represented, but of the availability of legal aid, should it be required.

The duty to inform is incumbent on all officers of the Court generally and ultimately on the presiding officer of the Court, when the person charged comes before him or her.”

The failure by the learned Magistrate to inform the Appellant of his right to legal representation amounted to irregularity in the way the trial was conducted. In the normal course such an occurrence would result in a re-trial. But as the Court has stated in the Vunigiagia Case, this factor of itself is not sufficient for an appeal to succeed. The Appellant, must also at the same time convince the Court that the absence of Counsel had prejudiced his defence. The Court records clearly show that, the Appellant had pleaded not guilty throughout his Court appearances, until he decided, 4 years later, in July 2003, to plead guilty to the charge. The charge had been read to him several times during his Court appearances, and he told the Court on each occasion that he understood the charge. In addition, the facts of the case had also been outlined to him in his appearance in December 2000, which he also disputed. He clearly understood what was going on throughout the proceedings. I am therefore satisfied that he would not have been prejudiced in any way by the lack of legal representation. The appeal on this ground fails.

Appeal Against Sentence

The maximum penalty for indecent assaults on women is 5 years. The learned Magistrate imposed 3 years imprisonment, which, the Appellant submitted, is harsh and excessive given his mitigating factors. According to the Appellant, he had cooperated fully in the investigation, and he had offered his Fijian traditional apology of “bulubulu” to the father and family of the complainant.

The recognised starting tariff for offence of indecent assault on minors is 3 years imprisonment. The sentencing principles for this and like offences are set out in Shameem J’s decision in Ratu Penioni Rokota v. The State Suva Crim. App. HAA0068.2002.

In this case the complainant was 7 years old and the Court had accorded the Appellant the correct starting tariff. The mitigating factors would have reduced the sentence by at the most 12 months. However, there are equally aggravating factors. The Appellant is the uncle to the complainant, who as a 7 year old, would have trusted and relied completely on the former as a protector. He failed miserably to show any sense of mature and responsible adult human being and a close affinity to the complainant, with the action he took. An innocent child’s trust in him had been completely misplaced. Secondly, and as the learned Magistrate had properly referred to, the Appellant’s 8 previous convictions included two for similar type offences. It could not therefore be said, that the Appellant is new to this or similar type of unacceptable human behaviour. These are factors that the Court rightly should take into consideration in counter balancing the mitigating factors of the Case.

A word about the Fijian traditional apology of “bulubulu”, where tabua or yaqona are presented to the aggrieved family by the perpetrator of the offence are often raised as a mitigator before the Court. Certainly, the ritual is relevant but only to the extent that it shows that there has been attempt at reconciliation between the parties. When done, and accepted it is in favour of the perpetrator. However, many offences, while committed against an individual, remains in the public domain. They are offences that are deemed injurious to the public at large offending society’s sense and standard of morality. For such offences, it is not enough to show that reconciliation even in the traditional Fijian way, has been achieved. The State must be free to impose its own sanction on behalf of the society as a whole. Without it, our standard of human decency becomes meaningless.

In all the circumstances of this case, I am satisfied that the learned Magistrate’s sentencing of the Appellant to 3 years imprisonment was neither harsh nor excessive. This ground is without merit and therefore unsuccessful.

This Appeal is dismissed.

F. Jitoko
JUDGE

At Labasa
24 August 2004