Ram v The State [2004] FJHC 470; HAA0023.2004L (1 October 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0023 OF 2004L

BABU RAM
s/o Bhawant

v.

THE STATE

Appellant in Person
Mr. N. Nand for the State

Hearing: 17 September 2004
Judgment: 1 October 2004

JUDGMENT

On the 31^st December 2003, the appellant appeared before the Nadi Magistrates Court and was charged with 3 counts of incest. The charges read as follows:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

BABU RAM s/o Bhawant a male person, between January 2001 and December 2002 at Barara, Nadi in the Western Division had carnal knowledge of SHEETAL SWANGANI DEVI whom he knew was his daughter and was under the age of 13 years.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

BABU RAM s/o Bhawant a male person, on the 4^th day of June 2003 at Barara, Nadi in the Western Division had carnal knowledge of SHEETAL SWANGANI DEVI whom he knew was his daughter and was aged 13 years and 2 months.

THIRD COUNT

Statement of Offence

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

Particulars of Offence

BABU RAM s/o Bhawant a male person, on the 23^rd day of December 2003 at Barara, Nadi in the Western Division had carnal knowledge of SHEETAL SWANGANI DEVI whom he knew was his daughter and was aged 13 years and 8 months.

The appellant pleaded guilty to the 2^nd and 3^rd counts and not guilty to the 1^st count.

The Learned Magistrate convicted the appellant and sentenced him to 6 years imprisonment on each of counts 2 and 3, such sentences to be served concurrently.

On 29 January 2004, the appellant pleaded guilty to count 1 and the Learned Magistrate sentenced the accused to 6 years imprisonment to be served concurrently with the sentence imposed on counts 2 and 3.

The facts put to the court in respect to count 2 are that on 4 June 2003 at about 9.00am, the accused was having sexual intercourse with his daughter, Sheetal in his bedroom when his son, Rajeshwar Ram, returned from the neighbour’s house and tried to find his sister, Sheetal. He went to a room and opened the door to check on her and he saw his father having sexual intercourse with the victim. When the accused saw his son, he jumped out of bed and pulled his trousers up. The son, Rajeshwar ran out and went to his brother, Shiu, whose house was nearby and told his sister-in-law. She later told her husband and her mother-in-law.

They did not take action and did not tell the police at that time but watched both of them from then on.

The facts with respect to the third count are that on 23 December 2003, the accused had sexual intercourse with the victim at his home. The daughter-in-law of the accused, Joytika Devi, returned from the neighbour’s place and heard loud music coming from the house of her father-in-law and she went in from the back door and saw the accused having sexual intercourse with the victim, Sheetal. The accused jumped out of bed and pulled his pants up.

At 1300 hours, the son of the accused returned from shopping and his wife, Joytika Devi, told him what she had seen and the matter was reported to Sabeto Police Station. When interviewed, the appellant admitted the offence.

The facts with respect to the first count as put to the court are that between January 2001 and December 2001, the accused had sexual intercourse with the victim on numerous occasions. She was in class 3 and he tried to have sexual intercourse with her but could not penetrate her vagina. The following year, 2001 she was in class 4 when he had sexual intercourse with her and his penis penetrated her vagina. Since then he continuously had sexual intercourse with her during 2001 and 2002.

The appellant is 56 years of age and he is a labourer. He is married with children and grand children.

In his sentencing remarks with respect to counts 2 and 3, the Learned Magistrate said: -

“I note that the maximum sentence under section 178(1) of the Penal Code is 7 years imprisonment and up to life if the child is under 13 years of age.”

Section 178(1) was amended by Act No. 7 of 2003 and the relevant maximum penalty was increased to 20 years imprisonment.

Prior to the amendment, it was considered that sentences of between 5 years and 3 years would be appropriate depending upon the aggravating and mitigating factors – State v Viliame Tamani – HAC0007 of 2003S.

It would seem that this range should now be between 15 years and 9 years. If 15 years is taken as a starting point and one-third reduction is given for the early plea of guilty and the resultant sentence is 10 years. The aggravating factors including the period of time over which the offences were committed justify increasing the penalty to 12 years imprisonment. As the offences in counts 2 and 3 are part of an ongoing offence, it is appropriate that the sentences be concurrent, with a resultant sentence on counts 2 and 3 of 12 years.

Count 1 was committed when the victim was under 13 years of age and accordingly, the maximum penalty is life imprisonment.

Whilst in The State v Viliame Tamani – HAC0007.2003S, it was suggested that the term of 6 years would be appropriate in these circumstances as I have said earlier, that decision does not take account of the increase in penalties by virtue of Act No. 7 of 2003 and therefore, I think penalties in the range of 10 to 14 years would now be appropriate.

The plea of guilty was very late and the aggravation is grave as the offence spans a period of 2 years and accordingly, a term of imprisonment for 12 years is appropriate.

This offence appears to be part of a continuing offence with counts 2 and 3 and accordingly, it is appropriate that the sentence be concurrent with the sentence imposed for those counts.

The result is that the sentence of 12 years imprisonment is appropriate but for the reasons stated which differ from those of the Learned Magistrate.

The appellant also appealed against conviction on the basis that the plea was equivocal.

The record of the court indicates that the plea was in fact unequivocal and when the questions and answers detailed in the court record, were put to the appellant, he acknowledged them to be correct. In the circumstances, there appears no basis on which the plea is equivocal.

The appeal is dismissed.

JOHN CONNORS
JUDGE

At Lautoka
1 October 2004