Narayan v State [2012] FJHC 861; HAM46.2010 (10 February 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
[APPELLATE JURISDICTION]

CRIMINAL APPEAL NO: HAM 46/2010
MC TAVUA Crim. Case No: 214/04

BETWEEN:

JAI RAM NARAYAN
The Appellant

AND:

THE STATE
The Respondent.

Before: Priyantha Nāwāna J.

Counsel
Appellant: Mr T Terere
Respondent: Mr T Qualinauci

Date of hearing: 19 January 2012

JUDGMENT

1. The appellant stood charged before the Magistrate's Court of Tavua of four charges of rape punishable under Section 149 read with 150 of the Penal Code.
   
2. The four charges were based on four separate instances of having unlawful carnal knowledge on the complainant-victim by the appellant between 01 December 2002-31 December 2002, 02 January 2003-04 April 2003, 14 April 2003-26 June 2003 and 14 July 2003-19 September 2003.
   
3. The victim, who was born on 29 May 1994, was the granddaughter of the appellant. The appellant was of 69 years of age at the time of the alleged offences.
   
4. The appellant pleaded not guilty to individual charges before the learned Magistrate. The trial, thereupon, proceeded where the complainant and three other witnesses gave evidence on behalf of the prosecution.
   
5. In her testimony, the complainant offered evidence on sexual intercourse having taken place at the hands of the appellant on the four occasions set out in the four counts. She stated that she was called into the house of the appellant, who was staying 7 meters away from her house, under the pretext of sweeping the house of the appellant and subjected to sexual acts. She recalled each time-period within which she was subjected to such sexual assaults; and, during each time period, the appellant had penetrated her vagina with his penis without her consent. She did not, however, inform the incidents to her parents as she was threatened by the appellant of harm. Nevertheless, she told her teachers at the school of the difficulties in staying at her house upon which the matter came to light and resulted in a complaint being made to police.
   
6. The evidence of the complainant remained unshaken under cross-examination. It was only alleged on behalf of the appellant that the complainant was making up a story against the appellant to grab the plot of land that he was occupying. The complainant denied the allegation.
   
7. Dr Takela Naituku, in her opinion, upon her examination of the complainant in November 2004, stated that the complainant had lost her virginity due to multiple acts of vaginal penetration over a period of time.
   
8. The uncontradicted evidence of Ms Nirmala Sharma, a retired head-teacher at Tavua Primary School, was that the complainant at some occasion disliked going home. Upon enquiry, the complainant started crying stating that the appellant-grandfather was ill-treating her and that he (the appellant) used to undress her and have sexual intercourse after sending away the brother to bring grog.
   
9. Kanchana Devi, testifying on behalf of the prosecution, said that the complainant was her daughter's best friend and that she had stayed at her place in March 2004 stating that the appellant was harassing her.
   
10. At the close of prosecution case, the learned Magistrate called for defence of the appellant. The appellant chose to give sworn evidence and denied the charges in each count and stated that he was incapacitated from engaging in sexual activity due to some serious injuries received in an accident in 2001. He further stated that he was suffering from ailments of hypertension, arthritis and was also having breathing problems. He pleaded ignorance as to why his granddaughter was making such allegations. The appellant admitted that there was, in any event, no animosity with the complainant or her family.
    
11. The learned Magistrate, upon consideration of the evidence, concluded that the case for the prosecution was proved in respect of the four charges of rape in the four counts beyond a reasonable doubt. The learned Magistrate was mindful of the requirement of penetration of the vagina of the complainant by the appellant and that such penetration was without the consent of the complainant to constitute the offences as charged in the four counts and held that each element was proved beyond a reasonable doubt. The learned Magistrate, thereupon, convicted the appellant of the four charges of rape in the four counts on 02 February 2010.
    
12. The learned Magistrate proceeded to sentence the accused after hearing submissions in mitigation. The learned Magistrate observed that the complainant was at a very tender age of eight years at the time of the repeated acts of sexual intercourse at the hands of the appellant who was her maternal grandfather. The learned Magistrate also took into account the fact that the complainant was under threat of harm, which forced her to keep away from home resulting in the delay in reporting the matter to the authorities.
    
13. The learned Magistrate, having noted that the range of sentence for the rape of children was between 10-13 year imprisonment, took as his starting point a term of eleven year imprisonment. The learned Magistrate, thereupon, considered that the appellant stood in a relationship of trust towards the complainant and that it served as an aggravating factor to enhance the sentence. He also stated that the complainant was subjected to an immeasurable adverse emotional effect owing to the conduct of the appellant. The learned Magistrate in consideration of those factors increased the sentence up to thirteen years.
    
14. The learned Magistrate accommodated the appellant's previous good character as a mitigating factor and reduced the sentence by one year to reach a term of twelve year-imprisonment in respect of each count of rape. The four sentences were ordered to run concurrent to each other. The learned Magistrate, acting under Section 18 of the Sentencing and Penalties Decree 2009 imposed a non-parole period of six years. The sentence was pronounced on 05 February 2010.
    
15. The appellant filed a petition of appeal against the sentence on 16 February 2010 on the grounds that the sentence was manifestly harsh and excessive and relied on the factors of age and being unfit for prison, and that the appellant was the sole breadwinner as grounds to seek a reduced sentence in appeal.
    
16. Mr T. Terere, learned counsel of the Legal Aid Commission, appearing on behalf of the appellant, informed court that he would intend to appeal out of time against the conviction as well and sought leave of this court on 02 May 2011. No material, however, was presented to satisfy court as to the delay for not being able to appeal against the conviction although the appeal against the sentence was duly lodged within time.
    
17. I, nevertheless, in the interests of justice considered the application of the learned counsel with a view to grant leave to appeal out of time if such course of action is warranted on the face of the Record. I find that the conviction was reached by the learned Magistrate after following all rules of fairness as justice demanded; and, that the analysis of evidence and the conclusion thereon are well founded. I am unable, in the circumstances, to find any prospect of success of an appeal in the event of leave to appeal out of time is granted. I, accordingly, disallow the application for leave to appeal against the conviction out of time.
    
18. The range of sentence for the offence of rape on children is almost settled and it varies from ten-thirteen year imprisonment. (Aesala Drotini v The State AAU 0001 of 2005S [HAC 0016/2003; State v Nacanieli Marawa [2004] HAC 016/2003; State v Lepani Saitava [2007] HAC 010/2007.
    
19. The period of imprisonment that could be imposed by a Magistrate, as prescribed by Section 7 of the Criminal Procedure Decree No 43 of 2009, is only ten years and that could vary only up to fourteen years in the case of convictions for more than one offence. Therefore, the maximum period of imprisonment that could have lawfully been imposed on the appellant by the Magistrate could not have exceeded ten years in respect of each offence in respect of each charge. (Fong Toy v State [2010] FJCA 27).
    
20. The selection of a starting point and arriving at a final term of imprisonment beyond ten years clearly offends Section 7 of the Decree and results in an illegality. In the result, I set aside the sentence and substitute in its place a sentence as follows on following considerations.
    
21. I pick up a ten year term, which is the lowest point in the range of sentence, as the starting point in order to be consonant with the jurisdiction of the Magistrate. I agree with the reasons given by the learned Magistrate to consider enhancement on the basis of breach of trust and rules of morality and add two years to reach twelve years. There was no meaningful mitigation; but, I would consider a reduction by two years of the sentence to denote his previous good character before he attained the status of a septuagenarian. The final sentence for each count will accordingly be a term of ten year imprisonment on each count.
    
22. To conform to the principle of totality, I order that each sentence shall run concurrent to each other with effect from 05 February 2010. Upon consideration of Section 18 of the Sentencing and Penalties Decree, I order that the appellant-prisoner shall not be eligible for parole until he serves a minimum period of nine years.
    

Priyantha Nāwāna
Judge
High Court

Lautoka
10 February 2012