Bennion v State [2008] FJHC 338; HAA032.2008 (21 October 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No. HAA 032 of 2008

Between:

WILLIAM RAYMOND ROBERT BENNION
Appellant

And:

STATE
Respondent

Date of Hearing : 21st October 2008
Date of Judgment : 21st October 2008

Appellant appeared in person
Mr. L. Sovau for the Respondent

JUDGMENT

1. On 13 May 2008, the Appellant, William Raymond Robert Bennion, was convicted after trial in the First Class Magistrates Court at Sigatoka of 3 counts of defilement of a girl under 13 years of age, contrary to section 155 (1) and (3) of the Penal code.
   
2. On 6 August 2008, the Appellant was sentenced to 2 years imprisonment on each count, to be served concurrently, with each other.
   
3. The Appellant now appeals against sentence.
   
4. At the hearing of this appeal, the following issues were considered.
   
   1. Time of presentation of the petition to the Sigatoka Magistrates Court; and
      
   2. If the appellant wanted to appeal against conviction as well.
      

Time for presenting the petition

5. The court records show that the Appellant, who is unrepresented, prepared his own petition. His petition was prepared from Prison and is dated 4 August 2008. The petition was received by the Sigatoka Magistrates Court on 11 August 2008, that being 3 days outside of the 28 days for presentation prescribed by s.310 (1) Criminal Procedure Code.
   
6. The position of Appeals out of time was stated by the Court of Appeal in Vimal Construction & Joinery Works Limited & Others v. Vinod Patel & Co Ltd [2008] ABU 0081 of 2006S where the Court held at paragraph 15:
   

"In 2008 litigants should not assume that leave will be given to bring or maintain appeals or other applications where those appeals or applications are out of time unless there are clear and cogent reasons for doing so."

7. This judgment was referred to again by the Court of Appeal in Woodstock Homes (Fiji) Ltd v. Sashi Kant Rajesh Civil Appeal No. ABU 0081 of 2006S where the Court held at paragraph 65:

"However, as held by this Court in Vimal Construction & Joinery Works Limited & Others v. Vinod Patel & Co Ltd [2008] ABU 0081 of 2006S, litigants should assume that leave to bring or maintain appeals or other applications where those appeals or applications are out of time will not be given unless there are clear and cogent reasons for delay. "Merit" of an appeal or proceeding, without more, will rarely justify an extension of time except where the delay is minimal and no prejudice was occasioned by the delay."

8. The Applicant says that his appeal is against sentence only. He does not wish to amend his petition and appeal against conviction as well.
   

9. The applicant says that this appeal should be allowed for the following reasons:

1. The delay in filing the petition was due to the Prison authorities failing to ensure that his petition was presented on time;
   
2. His sentence is too harsh, given that the offences occurred in 2000;
   
3. In 2006, he suffered from a spinal injury; and
   
4. His grandson is presently being cared for by his son and daughter in law, who both suffer from mental illness.
   

9. The prosecution say that in this case, a sentence of 2 years was lenient. They say similar cases have attracted prison terms from 3 to 4 years.

10. In his sentencing remarks, the learned Magistrate considered the case of State v Roqica & Others Criminal Appeal No. HAA 037 of 2002, where Shameem J refers to an earlier decision and states that "sentence for the defilement of girls between the ages of 13 and 16 range from a suspended sentence for "virtuous friendship" offending to 3 to 4 years imprisonment where the offended is older and in a trusted position in relation to the victim."

12. In this case, the learned Magistrate took 2 years of imprisonment as the starting point as there were 3 counts. He then took into account the mitigation submitted by the Appellants legal counsel, and reduced the sentence by 6 months. The learned Magistrate held that the accused was not entitled to any further reduction as he did not plead guilty.

13. The learned Magistrate then gave due consideration to the following aggravating factors. At the time of the offence, the Appellant was 40 years of age. The complainant was just 12 years of age. The Appellant was in a relationship with her mother, and they all lived in the same home. Given the complainants age, she was entitled to treat the Appellant as the trusted head of the family who could be called upon to provide protection and care.

14. However, the Appellant was found to have prayed upon the complainant’s vulnerability. For these reasons, the learned Magistrate added 6 months to the sentence, bring it to 2 years.

15. The learned Magistrate considered whether or not it was appropriate to suspend the sentence. After considering the affect that these proceedings had had on the complainant, and the offence itself, the learned Magistrate ordered that the sentence be immediate.

16. The Applicants petition was presented out of time. The Court of Appeal has ruled that litigants should not assume that leave to bring or maintain appeals will be given unless there are clear and cogent reasons for delay. I appreciate that while in prison, the Appellant must rely on the Prison authorities to ensure that his petition was presented in time. As the delay is minimal, and the matter of presentation is out of the Appellant’s control, I am willing to enlarge the period of limitation from 28 days to 31 days.

17. Having carefully considered the arguments presented by the Appellant and the Prosecution, I find that the Appeal against sentence is without merit. I therefore dismiss the appeal.

Anthony Sherry
Judge

At Lautoka
21st October 2008