Lingam v The State [2004] FJHC 441; HAA0082.2004L (30 July 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0082 OF 2004L

DAVID SHIU LINGAM
s/o Mutaya

V

THE STATE

Counsel: Mr. M.K. Sahu Khan for the Appellant
Mr. K. Tunidau for the State

Date of Hearing: 19 July 2004
Date of Judgment: 30 July 2004

JUDGMENT

This is an appeal against conviction and sentence. The appellant pleaded guilty and was convicted and sentenced to imprisonment for a term of 5 years.

Statement of Offence

DEFILEMENT OF A GIRL BETWEEN 13 YEARS AND 16 YEARS OF AGE: Contrary to section 156(1)(a) of the Penal Code, Cap. 17.

Particulars of Offence

DAVID SHIU LINGAM s/o Muthaiya on the 27^th day of March, 2004 at Solovi, Nadi in the Western Division had unlawful carnal knowledge of a girl namely PRITIKA MOHINI LATA d/o Suresh Chand being the age of 15 years and 29 days.

The appellant pleaded guilty of the 19^th May 2004 before the Nadi Magistrates Court.

The appellant waived his right to counsel and prior to entering his plea was advised of the defence contained in the proviso to section 156(1) of the Penal Code.

The Facts

The accused was charged that on the 27 March 2004 having gone to the house of the victim, in the absence of other members of the household, he asked for iced water and when she went to get it he went to her, held her and hugged her and then took off her clothes and had sexual intercourse with her. On the 3 April 2004 the matter was reported to the Police and the victim was medically examined. The accused when questioned admitted the offence. He admitted having sexual intercourse and admitted knowing at the time of the commission of the offence that the victim was under 16 years of age.

The Medical Report indicated that the victim’s hymen was perforated and that she was sexually active. In 2003 the appellant, who was a carrier driver, transported the victim to school when she was in class 8 in primary school.

The appellant admitted these facts after the Learned Magistrate again made him aware of the provisions of section 156(1) and the possible defence.

The Learned Magistrate asked a series of questions of the appellant: -

“Court: Before I ask you whether you admit facts or not, I would like to refer to few matters.

Firstly, you are made aware of s.156(1)(a) proviso of Penal Code. It is a possible defence if you as accused had reasonable cause to believe and did in fact believe that the victim was over the age of 16 years.

Accused: I knew she was under 16 years of age. I took her to school in primary school and children under 16 years go to primary school generally.

Court: I ask you – did you know for sure that she was under 16 years?

Accused: Yes.

Court: Absolutely sure?

Accused: Yes. Her father is my best friend and I know Pritika as primary school child.

Court: I am prepared to adjourn the case to get her birth certificate if you need it and if you feel she is over 16 years?

Accused: No need. I knew she is about 14 or so not 16 yet.

Court: Do you admit facts as outlined by prosecution regarding you defiling her as alleged?

Accused: Yes I do. I loved her and wanted her to be my second wife before she even went to high school.”

Appeal against Conviction

On behalf of the appellant it is submitted that the provisions of section 309 of the Criminal Procedure Code enable the appeal to proceed. This section permits an appeal against conviction only where the legality of the sentence is in issue.

The prior section in similar terms was considered by Grant CJ in Peni Rakorako v R - Cr. Appeal No. 85 of 1978 where with reliance on R v Gyan Deo 22 FLR 1 where he found that the section presupposes that: -

1. the offence is one known to law;
2. the admitted facts substantiate the offence;
3. the accused understood the charge;
4. the accused unequivocally admits his guilt.
   

The offence is known to law.

The accused admitted having sexual intercourse with the victim and admitted knowing that she was at that time under 16 years of age.

The Learned Magistrate indicated a preparedness to adjourn the proceedings to enable a birth certificate with respect to the accused to be produced. It is apparent from the above quoted record, the appellant declined as he knew her to be under 16. He transported her to school in year 8, primary school. Her father was his best friend and told him her age.

Counsel for the appellant urges that the caution interview shows that the appellant did not know that the accused was under 16 years of age. Clearly, from the answers given to the police officer, this was not so at the time of the commission of the offence with which he was charged.

It is submitted by counsel for the appellant that the prosecution, even where the offence is admitted, must prove the age of the victim and must prove that penetration took place. The authorities relied on do not support this proposition but merely support the obvious, that hearsay evidence of these elements is not sufficient to prove them.

Counsel for the appellant argues that by virtue of Ananaia Naqaqa & Ors v State – HBM0014 of 2000L that the Learned Magistrate erred in failing to invite the prosecution to disclose to the court the contents of the record of interview. The record of interview was tendered to the court on the appeal. It does no more than clearly confirm that the appellant was aware that the victim was under the age of 16 at the time of the offence with which he was charged was committed.

The appellant had knowledge of the age of the accused. The plea of guilty in the circumstances is unequivocal.

The appeal as to conviction must fail.

Appeal against Sentence

The maximum sentence for this offence is 10 years [Penal Code (Penalties) (Amendment) Act 2003].

Winter J. considered the relevant authorities in Etonia Rokowaqa v State – Cr. Appeal No. HAA0037 of 2004. He there concluded that since the increase of the maximum sentence to 10 years, the starting point for this offence is 4 years. With this I agree.

The appellant is entitled to a discount for his immediate plea of guilty which would reduce the sentence to 2 ½ years. The appellant had no prior convictions. Warranting a further reduction in sentence to 2 years.

The aggravating factors are that: -

1. the accused is 30 years of age and the victim 15 years of age;

2. the accused is married with 3 children;

3. the accused was a carrier driver driving the victim to school and therefore in a position of trust.
   

A sentence of 3 years therefore seems appropriate in the circumstances and the sentence of 5 years imposed by the Learned Magistrate is excessive.

Orders

1. Appeal against conviction dismissed.

2. Appeal against sentence allowed.

3. The sentence of 5 years imprisonment is set aside.

4. The appellant is sentenced to 3 years imprisonment to date from 19 May 2004.
   

JOHN CONNORS

JUDGE

AT LAUTOKA

30 JULY 2004