Vakamocea v State [1989] FJLawRp 1; [1989] 34 FLR 100 (6 September 1989)

[1988] 34 FLR 100

COURT OF APPEAL OF FIJI

Criminal Jurisdiction

MELI VAKAMOCEA

v

THE STATE

Kermode, J.A., Tikaram, J.A., Jesuratnam, J.A.

Hearing: 24 August 1988.
Judgment: 6 September 1988.

Criminal Law - Rape - Principles and guidelines to sentencing - co-accused should be sentenced together - disparity thus may be avoided.

Appellant In Person
I. Mataitoga for the Respondent.

Meli Vakamocea appealed against a sentence of three years imprisonment imposed on him by the Chief Justice on 29 February 1988 for the offence of Rape contrary to sections 149 and 150 of the Penal Code. The appellant had been jointly indicted with two others the second and third accused.

The brief facts stated by the Court included that the complainant an 18 year old girl attended a dance and there after was drinking some beer at a clearing off High Street, Toorak with a friend. The second accused arrived and invited the complainant to accompany him to a house in Rewa Street to "have sex" there. She refused. He punched her. She was injured over the eye. She ran to a shop in Toorak. The second accused caught up with her in a taxi. With assistance from others (including the third accused) she was forced into the taxi and taken to 158 Rewa Street where the first appellant lived.

In the house the second accused again punched her; he and the accused forced her into the bathroom. The second accused, and then the third accused raped her. Later the first appellant accused raped her. She left the house through the backdoor in the early hours of 25 February, 1987 went to police station and lodged a complaint. She was examined at the C.W.M. Hospital, her injury treated and she was given some pills. The accused were all known to her, the second accused once having been her boyfriend.

On arraignment on 18 February 1988, each pleaded not guilty. The complainant gave her evidence, describing the events she had experienced. She was cross-examined by each accused. The hearing was adjourned to the next day. On being called then, Mr Bale appeared for the first appellant who was absent. The hearing was adjourned for 21 February 1988.

On 28 February 1988 the first appellant again did not appear. A bench warrant was issued against him. Counsel withdrew. The second the third accused pleaded guilty. Mr Bale appeared for them. What happened then as to sentence was described in the Reasons for judgment-

"I have decided in view of the particular circumstances of the case to give you both a suspended sentence of 2 years. I am doing this (most unusual for a charge of rape) because I believe you two can be helped to live a good life."

Sentences of 2 years imprisonment were passed on the two co-accused. Each sentence was suspended.

Appellant was brought before the Court on 28 February 1988. He changed his plea to guilty. He offered what the Court described as an "unacceptable reason" for his failure earlier to attend. Evidence of his antecedents was given viz. he was aged 26 years, married with one child, and had a long list of convictions. The learned Chief Justice, on passing sentence said-

"I have listened carefully to all you have said to this court. I must say that looking at your antecedent history, that among the group of boys that raped that young girl, you were the oldest. But according to the record, you did nothing to discourage that behaviour nor did anything to stop the rape of that poor girl.

Your record of previous convictions show that your pattern of life has been one of indulging in criminal activities. It is probably also true to say that amongst you, you ought to have set a good example for the younger boys you were with on that morning. But I suppose that is asking too much. Moreover, I think this court cannot disregard the fact that twice last week you absented yourself without giving us any prior explanation and necessitated this court to issue bench warrants against you. You not only caused considerable inconvenience to this Court but also to the gentlemen assessors who are busy people in their own rights. This is clearly reflected on your kind of attitude which, unless you change it, you will be spending many more times in gaol.

The learned Chief Justice accepted that the plea of guilty which had saved the court from further sitting. He stated-

".........it could have come earlier and would have spared the girl from having to live through the ordeal of that night by having to give evidence here."

He imposed a sentence of imprisonment for three years.

The appeal arguments included a contention that the sentence was "harsh and excessive" and demonstrated a marked disparity with the treatment given the second and third accused. A suspended sentence was sought.

Held: It is desirable wherever possible to sentence co-accused together: if that had been done here. the complaint about disparity may never have arisen.

"For rape the sentence should be such as first of all to mark the gravity of the offence, second, emphasise public disapproval; third to serve as a warning to others; fourth to punish the offender and to protect woman". See per Lord Lane C. J. in R. v. Roberts (1982) 2 All ER 609.

The appellant's family circumstances were not such as to warrant leniency in the grounds of compassion.

Guidelines in Billam (1986) 82 Cr. App. R. 347 (adopted by the Chief Justice of Fiji) offered a range of sentences from 5 years (adult) as a starting point in a contested case without aggravating or mitigating circumstances; in cases similar to the instant case, the starting point suggested was 8 years. The crime of rape was all too prevalent in Fiji.

The principle that marked disparity of sentence between co-accused should be avoided has to be reconciled with the need to impose a proper sentence. In this case, the sentences on the co-accused were very lenient; to reduce the appellant's sentence would be seen as following one incorrect sentence with another. It would also create a greater disparity between defendants in this case and the general run of defendants in other rape cases where they have been given higher sentences. The disparity here would not justify a reduction of a sentence which was a already lenient. These considerations took precedence over any grievance the appellant may harbour over the leniency shown to his co-accused.

Appeal dismissed.

Cases Referred to:

Billam (1986) 82 Crim. App. R. 347
R. v. Roberts (1982) All ER 609
R. v. Richards (1955) 39 Cr. App. R. 191
Weeks & Ors (1982)74 Cr. App. R. 161

Judgment of the Court

This is an appeal against sentence of 3 years imprisonment imposed on the appellant by the learned Chief Justice on the 29th of February 1988 for the offence of rape in contrary to section 149 and 150 of the Penal Code. The appellant who was the 1st accused in the Court below was jointly indicted with 2 others (2nd and 3rd accused)

The brief facts of the case are as follows:-

On the 24^th April 1987, the complainant an 18 year old girl attended a dance at R.S.A. Hall and then ended up drinking beer with a friend at a clearing off High Street in Toorak a little after midnight. About an hour later, the second accused arrived on the scene and suggest to the complainant that they go to 158 Street to have sex there. When she refused he punched her and she was injured over the eye. She ran away to a shop in Toorak where the 2nd accused eventually caught up with her in a taxi. He again punched her and with the assistance of some others managed to drag the complainant into the taxi. They then took her t 158 Rewa Street where the 1^st accused lived. The 3rd accused was one of the persons in the taxi that took her to Rewa Street. There the second accused punched her and her and the third accused then had sex with the complainant against her will. The 3rd accused then followed suit. Later the 1st accused then had sex with her without her consent. She then left the house through the back door in the early hours of the morning of 25^th February 1987. An Indian boy jogging along Rewa Street accompanied her to Samabula Police Station where she lodged her complainant. She was examined at the C.W.M. Hospital where the injury on her was treated and she was given some pills. The complainant was known to all the 3 accused. Indeed the 2nd accused was her former boyfriend with whom she had had sex on a previous occasion. The 2nd accused claimed that he was fired with jealousy when he saw her with an older person in Toorak on the night in question.

In view of the nature of this appeal, we find it necessary to briefly outline the course that the trial took and the circumstances in which the sentences were passed.

When the 3 accused persons appeared in the High Court before the Chief Justice on 18/2/88 each one pleaded not guilty. The complainant then gave evidence detailing the ordeal she had gone through. She was cross-examined by each accused. The hearing was adjourned to the next morning but the appellant was absent when the case was called the next day. It had to be stood down till the afternoon when Mr Q. Bale appeared for the 1st appellant and made certain submissions following which the case was adjourned to 21st February 1988. On the adjourned date, the accused again did not appear and Mr Bale felt obliged to seek leave to withdraw which was granted. A bench warrant was ordered against the appellant. In the meantime, the 2nd and the 3rd accused instructed Mr Bale to appear for them and they then changed their plea to one of guilty. The Prosecution then adduced evidence of their antecedents Mr Bale made a strong plea in mitigation and asked that they be given a chance to rehabilitate. The 2nd accused was 23 years of age, married with one child. The 3rd accused was 17 years of age. For the purposes of sentencing, the prior convictions of both the accused persons were ignored by the learned Chief Justice for the reasons given by him in Court. He sentenced the 2nd and the 3rd accused to 2 years imprisonment each but suspended the sentence for 2 years. In passing sentence on these 2 accused persons he stated inter-alit:

"I have decided in view of the particular circumstances of the case to give you both a suspended sentence oft years. I am doing this (most unusual for a charge of rape) because I believe you two can he helped to live a good life."

The appellant was brought before the Court on 29th February 1988 when he changed his plea to guilty and gave what appears to us to be an unacceptable reason for his non-attendance on 22nd February.

Evidence of his antecedents was given and his list of previous convictions were put in. This showed that the appellant was 26 years of age, was married and had a young child at the time of the offence. He had a lone list of convictions starting from 1978. He asked for leniency so that he could reform. He was sentenced to 3 years imprisonment. In passing sentence the learned Chief Justice made the following observations:-

"I have listened carefully to all you have said to this court. I must say that looking at your antecedent history, that among the group of boys that raped that young girl, you were the oldest. But according to the record, you did nothing to discourage that behaviour nor did anything to stop the rape of that poor girl.

Your record of previous convictions show that your pattern of life has been one of indulging in criminal activities. It is probably also true to say that amongst you. You ought to have set a good example for the younger boys you were with on that morning. But I suppose that is asking too much. Moreover, I think this court cannot disregard the fact that twice last week you absented yourself without giving us any prior explanation and necessitated this court to issue bench warrants against you. You not only caused considerable inconvenience to this court but also to the gentlemen assessors who are busy people in their own rights. This is clearly reflected on your kind of attitude which, unless you change it, you will be spending many more times in gaol.

The only saving grace I can see in your case in this sordid affair is that this matter had been hanging over your head for a long time before it could be brought on for trial

I accept the fact that you have pleaded guilty which in some sense has saved the Court from further sitting on this case, but it could have come earlier on in this trial and would have spared the girl from having to live through the ordeal of that night by having to give evidence here.

As I have said earlier, rape is considered to be one of the most heinous offences in the criminal calendar. Every society takes a very grave view of people who commit rape.

So, given all the circumstances which I have explained, the sentence that I feel proper to pass on you is three years -imprisonment"

The appellant has appealed against this sentence and his grounds of appeal may be summarised as follows:-

(1) That there was a marked disparity in sentencing in that each of his co-accused received a 2-year suspended sentence only whereas he was given a 3-year prison sentence for the same offence and thus the appellant has suffered injustice.

(2) That the sentence passed on the appellant was in any case harsh and excessive because:-

(a) the Court failed to take into account his plea of guilty as a mitigating factor.

(b) the sentencing court failed to take into account that he was the sole bread-winner in the family and was a married man with a small child.

(c) be had not used any violence on the complainant

When the appellant appeared before this Court he appealed to us for mercy as he was very remorseful for what he had done He asked that he also be given a suspended sentence like his co-defendants.

It would be convenient to dispose of the second ground of appeal first for reasons which would become obvious later.

Let us state at the outset that the appellant's contention that the learned Chief Justice failed to give any consideration to his plea of guilty is misconceived as the learned Chief Justice's observations quoted earlier would clearly reveal.

It is true that the appellant did not assault the complainant at any time before having sex with her but we cannot help but note that the victim was already in a helpless position both physically and in regard to the captive situation she found herself in at the appellant's house.

The appellant's family circumstances were not such as to warrant leniency on grounds of compassion.

The learned Acting Director of Public Prosecutions Mr I. Mataitoga submitted that the sentence was in fact a lenient one. He cited cases to support his submission that the proper sentence should have been between 6-7 years imprisonment. Guidelines for sentencing in rape cases were set by the Lord Chief Justice of England when giving judgment of the Court of Appeal in Billam (1986) 82 Cr. App. R. 347. These guidelines have been adopted by our own Chief Justice in Circular Memorandum No. 1 of 1988 issued as recently as 26/7/88. For an adult a figure of 5 years is suggested in the guidelines as a starting point in a contested case without any aggravating or mitigating features but where the circumstances are similar to the case before us the starting point suggested is 8 years.

Mr I. Mataitoga also agreed that the sentence passed on the 2nd and the 3rd accused was very light. He however submitted that there was some justification for imposing a comparatively heavier sentence on the appellant.

The Fiji Court of Appeal has on previous occasions observed that the crime of ripe is all too prevalent in Fiji and prevalence is a factor that should he taken into account in assessing punishment. As was said by Lord Lane CJ in R. v. Roberts [1982] All ER 609 in cases of rape the sentence should be such as:-

"First of all to mark the gravity of the offence. Second, to emphasise public disapproval. Third, to serve as a warning to others. Fourth, to punish the offender, and last, but by no means least, to protect women."

Bearing these considerations in mind and the fact that the offence of rape is prevalent in Fiji we are of the opinion that the learned Chief Justice was more than justified in imposing the sentence he did. It is by no means manifestly excessive. On the contrary, it is on the lenient side if we have regard to the guidelines in the Billam Case and hear in mind the appellant's age, his criminal background and the circumstances of the offence. His appeal on the ground of severity therefore cannot succeed.

Turning now to the 1st ground of appeal relating to disparity of sentence we must say that this ground has caused us some concern because it is an important principle of sentencing that there should be justice between co-defendants which F requires that any difference in the sentences imposed should be reflected in the different degrees of their culpability and in their character and background. (See R. v. Richards (1955) 39 Cr. App. R. 191.)

It is desirable that whenever possible co-defendants should he sentenced together. The complaint about disparity, might not have arisen had the 3 accused been sentenced together but the appellants own failure to attend court contributed to this situation arising.

Mr Mataitoga agreed that this Court was faced with the difficult task of reconciling 2 competing principles namely the need to impose a proper sentence and the need to avoid marked disparity in sentences between co-defendants unless such disparity can be justified.

However, we must bear in mind that our prime concern is to decide whether the appellant's sentence was a proper one or not. Had the Director of Public Prosecutions appealed against the leniency shown to the 2nd and the 3rd accused this court would have been in a position to rectify any complaints about disparity. There is no such appeal before us although we had of necessity to compare the sentences because of the complaint about disparity. We are in no doubt that at least the 2nd accused who was the ring leader and who inflicted violence on the complainant, received a very lenient sentence compared with the one imposed on the appellant. The 2nd accused was a mature person and the degree of his culpability was substantially greater even after disregarding his criminal record. But would this disparity justify our reducing a sentence that we consider to be lenient in any case. We think not. Whilst we are aware that some appellate courts in the past have reduced particular sentences to bring about parity we do not think that we would be justified in doing so in this case. A reduction in sentence in the present circumstances could be seen as following one incorrect sentence with another. Furthermore, it would mean creating a greater disparity between defendants in this case and the general run of defendants in other case where they have been given higher sentences.

As was said by the English Court of Appeal in Weeks & Ors. (1982) 74 Cr. App. R. 161 the test is not whether the appellant harbours a grievance but whether his grievance is justified. We think it is not justifiable in this case because the sentence passed on the appellant was proper in principle and very moderate in extent. To reduce the sentence to bring about reasonable parity would also be to ignore the considerations (outlined earlier) that courts ought to take into account in passing sentence in rape cases. Those considerations must in the present circumstances take precedence over any grievance that the appellant may harbour about the leniency shown to his co-accuseds.

This appeal must therefore fail and it dismissed accordingly.

Appeal dismissed.