Poese v The State [2005] FJHC 9; HAA0091J.2004S (21 January 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0091 OF 2004S

BETWEEN:

TEVITA POESE
Appellant

AND:

STATE
Respondent

Counsel: Mr. A. Vakaloloma for the Appellant
Mr. W. Kuruisaqila for the Respondent

Hearing: 13th January 2005
Judgment: 21st January 2005

JUDGMENT

The Appellant was sentenced to a total of 15 years imprisonment in respect of the following offences:

First Count:

Rape: Contrary to Sections 149 and 150 of the Penal Code Cap. 17.

Tevita Poese on the 23rd day of June 998 at Nadera in the Central Division had unlawful carnal knowledge of NEOMAI MELE without her consent.

Second Count:

Rape: Contrary to Sections 149 and 150 of the Penal Code, Cap. 17.

Tevita Poese on the 26th day of June 1998 at Nadera in the Central Division had unlawful carnal knowledge of NEOMAI MELE without her consent.

Third Count:

Indecent Assault: Contrary to Sections 154(4) of the Penal Code, Cap.17.

Tevita Poese between the 30th day of June 1998 and 31st day of July 1998 at Nadera in the Central Division indecently exposed himself to NEOMAI MELE.

Fourth Count:

Rape: Contrary to Sections 149 and 150 of the Penal Code, Cap. 17.

Tevita Poese between the 1st day of January 1999 and the 31st day of December 1999 at Savusavu in the Northern Division had unlawful carnal knowledge of NEOMAI MELE without her consent.

Fifth Count:

Rape: Contrary to Sections 149 and 150 of the Penal Code, Cap. 17.

Tevita Poese between the 1st day of January and 2002 and the 1st day of August 2002 at Vunika in the Northern Division had unlawful carnal knowledge of NEOMAI MELE without her consent.

The charges were laid on the 4th of December 2003 and the trial commenced on the 4th of February 2004. The complainant, who is the Appellant’s daughter, gave evidence. She was 17 years old on the date of trial. She was born in January 1987. She said that in 1998, when she was 11 years old she with her father her sisters and brothers lived in the Nadera Hart Settlement.

On 23rd of June 1998, her mother was at the CWM Hospital. Her father, the Appellant came home at 8 p.m. or 9 p.m. The complainant was washing nappies. The Appellant told her to leave them until the next morning. When she entered the house the Appellant pushed her towards a cupboard. He tied her up with a cloth, placing her legs apart and tying her hands behind her back. Her legs were forced apart and tied to the cupboard. He also tied cloth over her mouth. He then took off her clothes licked her vagina and showed her a dagger. He warned her not to make any noise or he would kill her. He then raped her. He warned her not to tell her mother and told her that he would make her pregnant when she was16 years old. She said that on that day she “thought I was no longer a kid.”

A few days later, on her mother’s return home, the Appellant raped her again, this time in the toilet. He again performed oral sexual intercourse on her. He put a piece of cloth on her vagina to stop her bleeding and used a razor blade to cut her ankle so that if her mother questioned her about the bleeding she could explain it by showing her the cut on the ankle.

When the family was moving to Savusavu from Nadera the Appellant showed the complainant his penis and held her to suck it. The complainant told her mother this, and her mother became angry and slapped her.

In Savusavu, when the complainant was sleeping one night, the Appellant raped her again. He raped her one more time whilst they lived in Savusavu. They moved to Labasa in 2002. On one occasion he forced her to drink rum and coke and tried to force her to suck her penis. She refused, and he punched her. Later that night, he raped her in a bed she slept with her stepsister. Her stepsister slept throughout the incident.

After this incident, the complainant could no longer tolerate her father’s conduct, and moved to the home of a relative. She told him what had happened and he advised her to tell her mother. She wrote her mother a 3½ page handwritten letter, which was exhibited in court.

Her letter is dated the 6th of August 2002 and contains a full and detailed account of the sexual abuse suffered by her at the hands of her father. It is entirely consistent with her evidence in court.

Her mother then sent for the complainant to travel to Suva. At this time her mother was living with another man. The complainant told her mother again what had happened to her and her mother reported the matter to the police. She gave a statement to the police and was medical examined. She later became pregnant as a result of a sexual relationship with one Luke Vuiloa, a pastor’s son.

Under cross-examination complainant denied fabricating her evidence in collusion with her mother, and said that she had visited her father twice whilst he was remanded in prison. She said that she had not told her mother about the conduct of her father earlier, because she was afraid of him.

PW2 was the complainant’s mother. She confirmed that she had been separated from the accused since 2000. She said that when she read her daughter’s letter she felt sorry for her and called for her. She denied collaborating with her to accuse her husband in order to gain custody of her children.

The Appellant was interviewed under caution. He denied the allegations. He gave evidence on oath after the options were explained to him. He denied raping his daughter at any time and said that she had manufactured the story with her mother in order to keep him in prison.

In his judgment delivered on the 28th of April 2004 the learned Magistrate reviewed the facts, and the ingredients of the offences of rape and indecent assault. He considered the evidence on each count separately and reviewed the law on the admissibility of recent complaint. He pointed out that although by practice, the law of corroboration, continued to operate in Fiji, it had become defunct in other countries. It appears that he declined to warn himself on the need for corroboration saying instead (at page 43):

“Being a tribunal of fact, I wholly believed the allegations as contained in the victim’s letter addressed to her mother dated 6th August, 2002...Her evidence was given in a forthright way unperturbed by cross-examination...”

He found the Appellant guilty on all counts and convicted him. Counsel for the Appellant said nothing in mitigation. The learned Magistrate then sentenced the Appellant as follows:

Count 1 - 3 ½ years imprisonment

Court 2 - 3 ½ years imprisonment

Count 3 - 1 year imprisonment

Count 4 - 3 ½ years imprisonment

Count 5 - 3 ½ years imprisonment

All sentences were to run consecutively to each other. The total sentence is 15 years imprisonment.

The Appeal

The Appellant filed his appeal petitions in person on a number of grounds. However at the hearing of the appeal, counsel proceeded on only 5 grounds which I set out below:

1. The learned Magistrate failed to take into account the fact that PW1’s evidence was uncorroborated.
   
2. The learned trial Magistrate failed to properly assess the letter written by PW1.
   
3. The learned Magistrate erred when he treated the letter as corroboration.
   
4. The sentence was harsh and excessive.
   
5. The Magistrate passed a sentence beyond his jurisdiction.
   

Counsel for the Appellant submitted that the learned Magistrate erroneously treated PW1’s letter to her mother, as corroboration, that the letter was clearly a fabrication because it was written in a far too sophisticated manner for a girl from a rural community in Vanua Levu, that the Magistrates’ Courts only had jurisdiction to pass sentences up to 10 years imprisonment and that in any event, a total of 15 years imprisonment was in excess of the tariff for similar cases of the rape of children.

In response State Counsel submitted that the rule on corroboration in sexual cases has now given way, since the Fiji Court of Appeal decision in Seremaia Balelala v. The State Crim. App. AAU0003 of 2004S, to a general judicial discretion to warn on the special need for caution in cases of particularly suspect witnesses, that the total sentence was not harsh nor excessive and that the maximum sentence which can be passed in the Magistrates’ Court is now 20 years imprisonment on more than one count. I deal with each of the grounds of appeal in turn.

The Letter

The letter written by PW1 and identified by her as her letter, was evidence which was capable of being evidence of recent complaint. It could not have constituted of corroboration, because it was not independent of the complainant.

However, the learned Magistrate did not treat the letter as corroboration. He treated it as evidence of recent complaint having first identified the unnecessary components of evidence of recent complaint. He said that such evidence had to show that the complaint was made as speedily as can reasonably be expected, and that what is “speedy” depended on the age, maturity and personality of the complainant, the persons to whom she might reasonably be expected to complain and the reasons for any delay. He then considered the letter and found that the reasons for the delay in reporting were obvious from the contents of it. Expressed in the letter (which is couched in the most pathetic and heart rending terms) is a fear that the Appellant would make good his threats to injure her if she told anyone and her shame at what he had done to her. The letter was written only 6 days after the second date on the last count on the charge sheet. On the facts of this case, and given the circumstances of the complainant’s life between 1998 and 2002, I do not consider that the learned Magistrate erred in accepting the evidence of the letter as recent complaint and in concluding that it was indeed PW1’s letter. This was a finding of fact he was entitled to accept.

Of course the letter was evidence which went to the consistency of PW1’s version of events. The learned Magistrate was entitled to consider it when asking whether PW1’s evidence was credible, and not a false concoction. He did rely on it to that extent and I do not consider that he gave it undue weight or that he erred in any way in relation to it.

Corroboration

The learned Magistrate appears to have decided, on the basis of New Zealand authorities, that he would not warn himself on the dangers of convicting in the absence of corroboration. In taking that approach, he was supported by the Court of Appeal in Seremaia Balelala (supra). In that case, the Court held that the law on corroboration in sexual cases was confusing, discriminatory of women and that it perpetuated an inequality before the law. At page 19 of the judgment, the Court said:

“These considerations add weight to the conclusion that the rule of practice should be abrogated, not only by reason of the fact that it represents an outmoded and fundamentally flawed view but also by reason of the need to give full force and effect to the Constitutional principle of equality before the law ... As the rule is one of practice we consider it appropriate for us to declare that henceforth it need not be followed, although for more abundant caution, we also recommend that any residual question should be put to rest by legislation.”

In the circumstances, although there was in fact no corroboration in this case, the learned Magistrate did not err when he refused to warn himself. He clearly believed PW1 and found her to be a credible and consistent witness. This ground of appeal is dismissed.

Sentence

The amendment to section 7 of the Criminal Procedure Code (Criminal Procedure Code Amendment No. 13 of 2003) increased the jurisdiction of the Magistrates’ Court on one count to ten years from five. Section 12 of the Code provides:

“12-(1) when a person is convicted at one trial of two or more distinct offences the court may sentence him, for such offences, to the several punishments prescribed therefor which such court is competent to impose; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the court may direct, unless the court directs that such punishments shall run concurrently.

(2) in the case of consecutive sentences it shall not be necessary for the court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to impose on conviction of a single offence, to send the offender for trial before a higher court;

Provided as follows:

(a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years; and

(b) if the case is tried by a magistrates’ court the aggregate punishment shall not exceed twice the amount of punishment which the court is, in the exercise of its ordinary jurisdiction, competent to impose.

(3) For the purposes of appeal or confirmation the aggregate of consecutive sentences imposed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence.”

State counsel submits that section 12(2)(9) must be read subject to section 12(2)(b), and that because the sentence which can be passed on one count in section 7 is ten years imprisonment the maximum on two counts is now 20 years imprisonment.

I agree the amount of punishment that the Magistrates’ Court is, in its ordinary jurisdiction competent to impose, is ten years imprisonment. Twice that maximum is 20 years imprisonment. Thus where the offender is tried in the Magistrates’ Court the maximum sentence which can be imposed is 20 years imprisonment. When the Code was amended to increase jurisdiction, section 12 remained without amendment. In the past, section 12(2)(b) provided authority for the passing of sentence of up to 10 years imprisonment on more than one count. Logically it must now be read to permit the passing of up to 20 years imprisonment.

This ground is also dismissed. The appeal against sentence on each count does present problems however.

The tariff for rape in Fiji on one count is 5 to 10 years imprisonment where the victim is an adult. In Mark Lawrence Mutch v. State Crim. App. AAU0060 of 1990 the Court of Appeal said that for the rape of children, 10 years imprisonment was the minimum appropriate. Other cases suggest that the rapes of children have resulted in sentences of between 9 years (Waisake Navunigasau v. State Crim. App. AAU0012 of 1996) to 12 years imprisonment.

These cases suggest that a starting point of 10 years imprisonment in the case of the rape of a child would be appropriate. There are no mitigating circumstances in this case. The Appellant was not of previous good character. He was the victim’s father and her pastor. She was entirely at his mercy and he appears to have done with her as he wished. He tied her up so that she was spread-eagled and he used a dagger to threaten her into submission. On one count he cut her with a razor blade so that the vaginal bleeding would be explained. The first count of rape occurred when the victim was only 11 years old. Clearly she felt that he had robbed her of her childhood.

On count 1, taking into account the use of force, the tying up, the victim’s extreme youth, the gross breach of trust, and the brutality of the incident, a scaling up by 5 years imprisonment would be quite justifiable. As I have said, there were no mitigating circumstances.

Similarly the rapes on the other counts tell a story of casual brutality and of a complete disregard for the welfare of the victim and of her siblings. Sentences of 15 years on each count would not be wrong in principle. On the count of Indecent Assault, the tariff in Fiji is one to four years imprisonment.

Given the nature of the assault in this case a starting point of 2 years imprisonment is appropriate. I would increase that to 3 years for the breach of trust and age and vulnerability of the victim. A sentence of 3 years imprisonment is appropriate on Count 3.

These sentences would result in an excessively long sentence if they were served consecutively. They should therefore be served concurrently.

Although the appeal against the total sentence is dismissed, I consider that the learned Magistrate’s approach to sentence on each count was wrong in principle. I vary the sentences to be as follows:

Count 1 - 15 years imprisonment

Count 2 - 15 years imprisonment

Count 3 - 3 years imprisonment

Count 4 - 15 years imprisonment

Count 5 - 15 years imprisonment

All sentences are to be served concurrently with each other.

The appeal against Conviction and the total sentence is dismissed.

Nazhat Shameem
JUDGE

At Suva
21st January 2005