Talevakarua v State [2008] FJHC 322; HAA100.2008 (20 November 2008)

IN THE HIGH COURT OF THE FIJI ISLANDS
APPELLATE JURISDICTION
AT SUVA

Criminal Appeal Case No. HAA 100/08

BETWEEN:

PAULIASI TALEVAKARUA
Appellant

AND:

THE STATE
Respondent

Counsel: Appellant in Person
Ms L. Tuiketei for the Respondent

Date of Hearing & Ruling: 17 October 2008

RULING

1. I dismissed this appeal against sentence as having no merit on 17 October 2008 and advised that I would provide my written ruling later. I do so now.
   
2. Pauliasi Talevakarua, this is your appeal against sentence. On 21 July 2008, you were charged as follows:
   

Count 1

Statement of Offence

Assault Occasioning Actual Bodily Harm: Contrary to section 245 of the Penal Code Cap 17

Particulars of Offence

PAULIASI TALEVAKARUA on 11 day of July 2008 at Nasinu in the Central Division, assaulted FAITH VINEETA d/o Paul Ram Pal thereby occasioning actual bodily harm

Count 2

Statement of Offence

Unnatural Offences: contrary to section 175(a) of the Penal Code Cap 17

Particulars of Offence

PAULIASI TALEVAKARUA on the 11 day of July 2008 at Nasinu in the Central Division had unlawful carnal knowledge of FAITH VINEETA against the order of nature.

3. On the same day the case was called in the Nasinu Magistrates Court. You waived your right to counsel. When the charge was read and explained to you, you told the court that you understood it. You pleaded guilty to both counts above.
   
4. In court you said with regard to count 1 ‘ I admit I punched and injured the complainant, on 11 July 2008.’ With regard to count 2 you said ‘ I admit I inserted my erect penis into the complainant’s anus, on 11 July 2008, without her consent. I admit I knew she was not consenting to me inserting my erect penis into her anus.’
   
5. On the basis of your admission above, you were found guilty and convicted on both counts. On count 2, you were sentenced to 3 years imprisonment and for count 1 you were sentenced to 3 months imprisonment. Both sentences were ordered to be served concurrently.
   

Appeal Grounds

6. This is your appeal. On 9 October 2008 when the appeal was first called for a hearing date to be fixed, you had advised the court that your appeal is against sentence only and not against conviction and sentence as earlier stated in your letter petitioning appeal.
   
7. You complain that the 3 years imprisonment is harsh and excessive and in support of this complain, you allege the following specific grounds: [summarized by the court]
   
   1. Your guilty plea was not adequately considered by the trial Magistrate;
   2. The starting point of the sentence determination of 5 years was wrong;
   3. The learned Magistrate did not seriously consider my submission that he was provoked by the victim/wife’s extra-marital affair;
   4. That he has not committed any offence for the last 10 years and is a first offender for purpose of sentencing and he promise not to reoffend again.
   5. You have reconciled with the victim/wife and she has been visiting me in Prison.
      

Review of sentence

8. The liable sentence for assault Occasioning Actual Bodily Harm under section 245 of the Penal Code Cap 17 is a maximum of 5 years imprisonment.
   
9. The liable sentence for the offence Unnatural Offence under section 175 of the Penal Code Cap 17 is 14 years imprisonment.
   
10. It is clear that the appellant was charged and convicted of two serious offences in terms of liable imprisonment term. The learned Magistrate decided to consider both counts against together for sentencing. There were no prejudice likely to arise from that procedure and I accept it as proper. He noted that as for count 2 of Unnatural Offence, he could only sentence the appellant to a maximum of 10 years imprisonment.
    
11. Your first complain is that the choice of 5 years imprisonment as the starting point of the sentence determination was harsh and excessive. I find that on the facts of this case and in the light of the relevant case law the choice of starting point is within tariff and that it was in law open to the learned Magistrate to chose as he did.
    
12. As regards, your complaint that your guilty plea was not accounted for. I agree with it in so far as it was discounted separately by the learned Magistrate, but it is clear that in allowing for 3 years discount for the mitigating factors which included the guilty plea, he had taken it into consideration. Whilst it would have been preferable that he discounted the appellant’s guilty plea separately, it was nevertheless accounted for and I might add that given that there were no real mitigating factors on the facts of this case, the discount was rather generous to say the least. There is no merit on this ground.
    
13. I have difficulty accepting the claim by the appellant that there was reconciliation, but even if there was reconciliation, its value is irrelevant because it can’t be pleaded to reduce a lawful sentence that a court must pass in appropriate circumstances to show society’s abhorrence against certain criminal acts and to uphold moral standards.
    
14. Mr Justice Jitoko in Apenisa Seruitata v The State [2004] FJHC 20; HAA 0006 of 2003 in dealing with such a ground where traditional ‘bulubulu’ had been performed and were submitted as a ground of appeal against sentence said:
    

‘ However, many offences, while committed against an individual, remain 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 society as a whole’.

15. I agree with the above view as regards the reconciliation in this case. I find that the submission that there was reconciliation is meritless.
    
16. The other ground submitted is the claim by the appellant that he committed those atrocious acts on his de facto wife because he was provoked by some information he had received that his wife was having an extramarital affair. Even if this claim by the appellant were true, it would be not considered as a mitigating factor sufficiently to influence a reduction in the sentence. This ground has no merit.
    
17. I now turn to consider whether on the facts of this case an imprisonment of 3 years for the offences for which the appellant was convicted is harsh or excessive.
    
18. In Samisoni Tawake v The State [2007] FJHC; HAA 082 of 2007 (10 October 2007) I reviewed the sentences passed by the High Court in six cases where the sentences ranged from 9 months to 6 years imprisonment for Unnatural Offences under section 175 of the Penal Code Cap 17. I held in that case the tariff for unnatural offence should be 4-6 years imprisonment.
    
19. In this case, the 5 years imprisonment as the starting point is within that tariff.
    
20. The facts of this case show the degenerate behavior of the appellant against a woman who has been supportive of him in their relationship. The need to send clear unmistakable statement to others similarly inclined, that the court will not condone such behavior even in a husband/wife context justify the higher end of the tariff chosen, especially where the woman is the victim of such abusive and despicable behavior. The acts of the appellant and the manner in which he committed the offence was more in the nature of torture and inhuman treatment given his blatant disregard of the victim’s rights.
    
21. I therefore find no basis in law or as a matter of sentencing principle for finding the 3 years sentence imprisonment passed against the appellant incorrect. In my view the sentence was lenient.
    
22. I dismiss the appeal against sentence and uphold the trial Magistrates sentence.
    
23. In conclusion this appeal against sentence has no merit. I dismiss it. The sentence in the Magistrates’ Court is upheld. Ordered accordingly.
    

Isikeli Mataitoga
JUDGE

At Suva
20 November 2008