Muriti v The State [2005] FJHC 204; HAA0014J.2004B (28 July 2005)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CRIM. APPEAL No. HAA0014J OF 2004B

MEGNA MURITI
(s/o Ram Murti)
APPELLANT

V.

THE STATE
RESPONDENT

Counsel for the Appellant: In Person
Counsel for the Respondent: Ms S. Shah

Date of Judgment: 28.07.05
Time of Judgment: 10.30 a.m.

JUDGMENT

The Appellant was convicted on 8 August 2003 at the Labasa Magistrates’ Court on 2 counts of rape. The charges read as follows:

FIRST COUNT

Statement of Offence

RAPE : Contrary to sections 149 and 150 of the Penal Code, Cap. 17

Particulars of Offence

MEGHNA MURTI s/o Ram Murti, on 27 January, 2002, at Labasa in the Northern Division had unlawful carnal knowledge of a woman namely Ashwani Sashi Naidu d/o Govind Sami, without her consent.

SECOND COUNT

Statement of Offence

RAPE : Contrary to sections 149 and 150 of the Penal Code, Cap. 17.

Particulars of Offence

MEGHNA MURTI s/o Ram Murti, on 1st day of February 2002, at Labasa in the Northern Division, had unlawful carnal knowledge of a woman namely Ashwani Sashi Naidu d/o Govind Sami, without her consent.

The Appellant was convicted and sentenced to a term of 5 years imprisonment on each count, each of which to be served concurrently.

The Appellant, as far as the Court can ascertain from both the letter of application and oral submission, is appealing against both conviction and sentence. The State as Respondent, has also counter-appealed on the sentence, upon the following grounds:

“(a) the learned magistrate erred in law when he failed to apply the correct sentencing principles applicable in rape cases, in particular, the correct starting point enunciated by the High Court.

(b) the learned magistrate erred in law and fact when he imposed a sentence that is manifestly lenient having regard to all the circumstances of the case, in particular its aggravating features.”

The Appellant first appeared and pleaded not guilty in the Labasa Magistrates’ Court on 5 August 2003. The victim’s evidence together with those of 3 prosecution witnesses had already been heard. On 8 August, 2003, in the course of the hearing of the victim’s mother’s evidence, the Appellant changed his plea to guilty. The Court informed him of his rights, and thereafter the trial proceeded which finally resulted in the conviction and sentence above.

The facts according to the record are as follows. The victim’s mother had moved with the victim and her younger sister and brother from Wainikoro to Vunika, following the death of her husband. The family initially stayed with the mother’s younger sister, where the Appellant, who is related to the younger sister’s husband, met and formed a close relationship with the victim’s mother. They in fact became lovers. In the end the Appellant and the victim’s mother moved away together with the victim and her siblings tour.

For approximately 2 years the Appellant lived as the head of the victim’s household, although the Appellant’s relationship with the victim’s mother remained as one of common law husband and wife.

On 27 January 2002, the first offence of rape took place. On the day, the Appellant together with the victim’s mother, had taken the Appellant’s mother to the hospital and then later to the Applicant’s brother’s house when the victim’s mother stayed to look after the Appellant’s ailing mother. The victim and her brother and sister stayed on their own in the house, sharing a bedroom of 2 beds. One was occupied by the victim and the other shared by her younger brother and sister. At about 1 a.m. the Applicant returned home and was let in by the victim, who then went straight back to bed. Around 2.30 a.m., the victim was awoken by the Appellant standing over her, naked, a knife in his hand. He then with his other hand pressed his face closing his mouth stopping her from making any sound. After threatening her with the knife if she objected or raised the alarm, he dropped the knife and while still maintaining his right hand pressure on her mouth, pulled her dress up and panties down with his free left hand. The Appellant then forcibly had sex with the victim. The Appellant afterwards threatened the victim with death should she tell anyone of the incident.

The second rape occurred on 1 February 2002. The victim was alone at home when the Appellant returned from Soasoa. The latter asked the victim for sex. The victim refused, and the Appellant threatened with a knife and death reprisal should she reveal all, before he again forcibly had sex with her.

Appellant’s Appeal

The Appellant’s appeal against conviction is premised on the ground that he was tricked into pleading guilty in exchange for a non-custodial sentence. According to the Appellant, the police confronted him during the Court’s adjournment on the second day of hearing, and persuaded him to change his plea to guilty. In return, the Appellant alleges, the police were to secure a non-custodial sentence, instead of 9 years imprisonment if he was found guilty. The Appellant further states that he was easily converted, because of the mental and emotional instability he was under at the trial.

In addition, the Appellant argues that sex with the victim was consensual and in support of this, referred to a letter from the victim obtained by the Appellant and which the Appellant claims had been given to the Labasa Police Station to be handed over to the Court to prove his case.

As to the claim of the police ruse for the Appellant to change his plea, this Court does not find any credible evidence for support such allegation. The record of the proceedings show merely that the Appellant had decided to change his plea soon after the mother of the victim began giving evidence. Thereafter the learned magistrate warned the Appellant and specifically asked him whether there was any pressure exerted on him to change his plea. The Appellant, according to the records, stated that there was no pressure made on him and he wished to changed his plea to guilty “on my own accord.” There cannot be any clearer evidence than this to show that the Appellant had not been persuaded by another to change his plea.

The Appellant’s submission that he had produced to the police a written statement by the victim confirming that sex was consensual is also not proven. Neither was any reference made to it by the Appellant himself in the course of the trial. But even if there was such a statement, the Court would have been very wary of the victim’s voluntariness to make it, given the appellant’s physical presence over her and the threats of bodily harm which he had made to her in the past.

Finally the Appellant makes the point that the victim did not report the rapes to the police, until 3 weeks after the incidents. This tends to support his argument that there was no rape only consensual sex. However, it is clear from the evidence of both the victim and her mother that the Appellant had exerted power over them during and immediately after the offences were committed. There were very little opportunities to let on to the authorities the terrifying ordeals the victim had undergone. The Appellant was always around the only when the victim’s auntie called the police following the Appellant’s abuse of the victim and her mother, did the opportunity present itself.

I am satisfied having reviewed the evidence that the learned magistrate had correctly convicted the Appellant for the 2 counts of rape.

The Appellant’s appeal on sentence, I will deal with together with the prosecution cross-appeal below.

Appeal on Sentence

Both the Appellant and prosecution appealed on the ground of sentence. The Appellant argues that the sentence of 5 years was excessive and amounted to a miscarriage of justice. The prosecution for its part argued to the contrary namely that the sentence was manifestly lenient having regard to all the circumstances of the case, and that the learned magistrate had failed to apply the correct sentencing principles applicable in all rape case.

First, the prosecution submission that the learned magistrate failed to apply the correct sentencing principles. It is clear from the record that the learned magistrate had paid particular attention to these. Not only did he refer to the High Court decisions that provide him authority, but abided by them. The learned magistrate correctly stated that the starting tariff for similar offences was 7 years. He then worked on the aggravating versus the mitigating factors reflecting in the upscaling and downsealing of the sentence. In the end, the learned magistrate concluded that 5 years was the appropriate tariff. Under the circumstances, I do not see any merit in the prosecution’s argument that the learned magistrate had failed to apply the correct sentencing principles. Similarly, its arguments that the sentence was manifestly lenient having regards to all the circumstances of the case, does not succeed. The learned magistrate had taken on board all the relevant factors in favour and against the Appellant and in the exercise of his discretions, arrived at the final 5 years sentence.

The Appellant’s submission that the sentence was excessive, is without merit. If anything, the learned magistrate had been almost lenient in the sentence given the nature of the offence and the relationship of the victim to the Appellant. I do not see any good reason to disturb the findings of the Court below.

In the end, the Court finds no merit in both the Appellant’s appeal and the cross appeal by the Respondent. Each is dismissed.

I make no award as to costs.

F. Jitoko
JUDGE

At Labasa
28 July 2005