Kadavu v State [2001] FJLawRp 35; [2001] 1 FLR 180 (4 May 2001)

VERETARIKI KADAVU, RT v STATE

High Court Criminal Appellate Jurisdiction

28 March, 20 April, 4 May, 2001

HAA 049/00L

Act with intent to Cause Grievous Harm – indecent assault - attempted raping of daughter - appeal against Sentence – disparity of sentences in sexual offences case

The Appellant pleaded guilty on count 1 to Act with intent to Cause Grievous Harm and was sentenced to two years. The appellate Court found the sentence was appropriate. On count 2 of attempted raping of his daughter, the Appellant was convicted on a lesser count of indecent assault by the Magistrate and sentenced to 4 years imprisonment. The appellate Court discussed various authorities and its role in balancing public confidence in the Court with showing mercy to an offender.

Held – The principle role of court is the balancing of protection of public confidence in Court to that of leaning towards mercifulness of the circumstances of the offender. An abhorrence of crimes of indecent assault, given the social/cultural/ religious environment of Fiji, is not in itself adequate.

Total sentence reduced from 4 years to 2½ years imprisonment.

Cases referred in Judgment
Arun Kumar v State [1995] HAA 3/95B 7 February 1995
Chandar Sen v State HAA 005/96L
DPP v Saviriano Radovu (1996) 42 FLR 76
Manoj Kumar Singh v State HAM0037/94L 27 January 1995
Regina v Bibi (1980) 1 WLR 1193
R v Helliwell (1987) 5 Cr.App.R(S) 357
R v Lawson [1982] NZCA 67; [1982] 2 NZLR 219
R v Renouf (1988) 10 Cr.App.R(S) 157
R v Turner (1983) 5 Cr.App.R(S) 254
Ram Khelawan v State HAA 0038/98L 27 May 1998
Regina v Ram Sewak and Shiu Lal HAA 69/77
Robin Abhinesh Lal v State HAA 29/98S
Saha Deo v State [1989] HAA 23/89B 23 November 1989
Webee v O'Sullivan (1952) S.A.S.R. 65

Appellant in person
Davendra Prasad for the Respondent

4 May, 2001

JUDGMENT

Prakash, J
On 2 February 2000 the Appellant appeared before the Magistrates' Court at Rakiraki. He was charged with the following two offences:

Count 1: Act with Intent to Cause Grievous Harm - Contrary to section 224(a) of the Penal Code.

Count 2: Attempted Rape - Contrary to Section 151 of the Penal Code.

He elected to be tried by the Magistrates' Court. He pleaded guilty to Count 1. He was tried for Count 2, but the learned Magistrate found him not guilty for attempted rape but guilty of Indecent Assault. He was convicted and sentenced to 2 years imprisonment on Count 1 and 4 years imprisonment for the conviction for Indecent assault. Both sentences were to be served concurrently.

The Appellant appeals against the sentences on the following terms, as stated in his Petition of Appeal:

1) That I have reconciled with the victim and my wife.

2) That I was the sole bread winner in our family looking after my wife and five (5) children and since I was unemployed, I worked on our farm and struggled to meet ends.

3) That two of my children are attending high school and three in primary school and due to my being imprisoned they will have to leave school and support themselves.

4) That the sentence is too harsh and excessive.

5) That the magistrate failed to take into consideration the facts that I have beaten my daughter up and in anger she reported to her mother that I had attempted to rape her. I as a father was just trying to teach her a lesson, but a case was framed up.

At the hearing of the Appeal the Appellant confirmed that he wished to appeal against his sentence only. It is clear from grounds 1-4 that he is aggrieved by the sentences imposed. Ground 5 appears to raise doubts about the conviction on Count 2 on the basis of a frame up. The Court has thoroughly analysed the Court records of the trial. There is no basis for any doubts about the conviction for Indecent assault. The trial was conducted fairly and with due process accorded to the Appellant. In a well written and reasoned judgment the learned Magistrate set out the basis on which she found the Appellant guilty on the offence charged in Count 1 and why she found him guilty for Indecent assault on Count 2. She properly and fully considered the evidence against the Appellant. She considered the demeanor and credibility of the complainant and other witnesses for the Prosecution. This Court is in no position to fault the learned Magistrate on her findings of guilt. She was correct in law.

In sentencing the Appellant the learned Magistrate considered all the factors relevant to sentencing for such offences. Given the injuries and threats used the sentence of two years is appropriate for Count 1. Even in his petition of appeal the Appellant concedes he hit his daughter "to teach her a lesson - but a case was framed up". It is clear from the evidence on record and what the Appellant has stated in this Court that the teaching of a lesson for the complainant daughter to listen to the Appellant/father and to go to the farm was not the purpose of the ill treatment meted.

Much of the sentencing remarks dealt with the offence of Indecent assault. Here again the learned Magistrate did properly consider the gravity of the offence, the relationship of trust and the psychological effects on the victim. The only aspect of the sentencing that this Court is concerned about is the issue of reconciliation (Ground 1). The Appellant stated that he informed the learned Magistrate that he had reconciled with the victim and his wife. However, this is not on the records. According to the records (p. 19) inter alia, he asked for "another chance" ... was "sorry for what I have done" and asked for "mercy". He further stated that he "never suffered from any mental or personality disorder. Ask for leniency and for another chance". The learned Magistrate did consider the effect of any sentences on his 6 children who were attending school. She was also aware that farming was their only source of income. The Appellant's wife did state to this Court that she was facing difficulties in caring for their children without him. The Court is aware that neither Count 1 nor 2 are reconcilable offences. Any reconciliation can only go to mitigation.

The Court was aware that the victim and her mother came to the High Court when the Appeal was first set for hearing on 16/03/01. However, due to the closure of the High Court by the Occupational Health and Safety inspectors the hearing was adjourned. The victim and her mother did come to Court on 20/04/01. They did confirm that they had reconciled and trusted the Appellant. They were confident that he would not commit such an offence against the complainant again. The learned Magistrate had observed that the complaint was confident, consistent and straight forward in her manner of giving evidence. This Court was also able to observe her. She stated that she could now trust her father and that he had now changed. She stated that nobody put pressure on her. She voluntarily visited her father when he was in jail. The Court is conscious that given her dependence and relationship with the Appellant there must have been informal and subtle pressures for her to reconcile especially in a rural Fijian village community.

The Court has been provided very little assistance by the State on authorities and cases of Indecent assault in Fiji, especially involving father and daughter. As regards indecent assaults generally fines have been imposed (Regina v Ram Sewak and Shiu Lal Cr. App 69 of 1977). This appears to be quite inappropriate given the current concerns about sexual offences, gender violence and rights of victims of crime. In recent years sentences of 1 to 4 years have been seen as appropriate. However, a sentences as low as 1 month has been imposed (Ram Khelawan v State Cr. App HAA 0038 of 1998L). Suspended sentences have also been given by the Magistrates' Courts (see undated Fiji Times reports tendered by Appellant). The Fiji Women's Crisis Centre Newsletter (February 2001, p.2) tendered by the Appellant, reports as follows on sentences for rape and sexual assault.

"Jan 6 - A 60 year-old man was given a 2 year suspended sentence for sexually assaulting a 6 year old girl.

Jan 12 - A 43 year old man was sentenced to 15 months in jail for sexually assaulting his 13 year old niece

Jan 14 - A man was jailed for 3 years for attempting to rape his 13 year-old niece."

In the case of Chandar Sen v State (Lautoka Cr. App HAA005 of 1995L) the High Court recorded the following sentences imposed by the Magistrates' Courts, based on press clippings put before the Court:

1. Labasa Court - 17th May 1994 - Fiji Times, a former school teacher NARAYAN CHAND convicted of indecent assault having fondled the breasts of a 14 year old student. Jailed for 6 months suspended for one year and fined $450.00. $400 of which was to be compensation to the complainant.

2. Nabouwalu Court - 30th January 1995 - Fiji Times, a SEREMAIA BUKAVOU aged 38 with nine previous convictions including one of indecent assault was jailed for six months for an indecent assault on his 17 year old niece.

3. Suva Magistrates' Court - 17th January 1996 - Daily Post, MITIELI KOROI 19 years of age was sentenced to 18 months imprisonment for indecently assaulting a 9 year old school girl by telling her to lie down on the ground whilst he fiddled with her private parts. Koroi had no previous offences.

4. Nausori Magistrates' Court - 1st February 1996 - Fiji-Times JOSESE-NAOCIBA 18 years old was sentenced to two years for defilement of a 14 year old girl NAICOBA had no previous convictions.

5. Suva Magistrates' Court - 23rd November 1993, Fiji Times, ATUNAISA VUNIWAQA 24 years old was jailed for 2 years on a charge of attempted rape on a 4 year old girl. Some alcohol was involved. The girl needed hospital treatment after the attack which was associated with some violence of a minor nature. There is no record of VUNIWAQA of any previous convictions.

6. Suva Magistrates' Court - 25th January 1996 - Fiji Times, SIMIONE SANAILA 35 years old was sentenced to three and half years in jail for indecently assaulting his 10 year old niece. The presiding Magistrate appears only to have desisted from ordering corporal punishment as the offender was over 35 years of age. It appears that SANAILA had no previous conviction.

7. Labasa Magistrates' Court - 1st February 1996 - Fiji Times, ABDUL KALAM 36 years old was sentenced to two and half years imprisonment for indecently assaulting a 14 year old girl. KALAM had six previous convictions but it does not appear that any of those were previous offences of a like nature.

Some relevant High Court authorities available to this Court also reveal the variations in sentencing. In Arun Kumar v State (Cr. App No. 3 of 1995 at Labasa) a sentence of 9 months was imposed on the Appellant, a first offender, who forcefully kissed a woman. The High Court reduced this to 3 months. In Saha Deo v State (Cr. App 23 of 1989, at Labasa) the High Court did not disturb a sentence of 12 months imposed on the Appellant for indecent assault on a woman in his settlement. In Robin Abhinesh Lal v State (Cr App HAA29 of 1998S) the High Court confirmed a sentence of 18 months imposed on the Appellant by the Nausori Magistrates' Court. The Appellant, an 18 year old first offender, had rubbed his penis on the buttocks of his 3 year old cousin sister and ejaculated. In DPP v Saviriano Radovu (Cr App 0006 of 1996 at Labasa) the High Court set aside a suspended sentence of 9 months and imposed a custodial sentence of 9 months imprisonment. The Appellant was convicted for fiddling the breasts of a 8 year old girl who was a stranger to him. In Manoj Kumar Singh v State (Cr App HAM0037 of 1994L) the High Court reduced a sentence of 5 years to 18 months for indecent assault. The Appellant had tried to have sex with a woman and in the process tore her pants.

The Court has considered the sentencing for Indecent assault on females contained in Current Sentencing Practice (Sweet & Maxwell 1995). In reading these cases the Court can only concur with the remarks of McMulin J. that: "Sentencing is not an exact science and the circumstances of one offender can rarely be closely compared with those of another" (R v Lawson [1982] NZCA 67; [1982] 2 NZLR 219, 223. In R v Turner (1983) 5 Cr. App R(S) 254 the Appellant, a man of 50, was convicted of indecently assaulting his two year old niece. The Appellant had taken a bath with the child, and while doing so rubbed her vagina on his penis several times. There was no attempt at penetration. His sentence of 3 years was reduced to 2 years.

In R v Helliwell (1987) 5 C.r. App R(S) 357 the Appellant pleaded, guilty to two counts of indecent assault on two of his twin daughters aged 4 years. He was separated from his wife and his daughters stayed with him most weekends. He had fingered them in the region of the vagina. He pleaded guilty and was sentenced to 2½ years imprisonment. On appeal these were reduced to 9 months.

In R v Renouf (1988) 10 Cr. App R(S) 157 the Appellant pleaded guilty to three counts of indecent assault. He had indecently assaulted his stepdaughter frequently over a period of about 12 months, beginning when she was about 14 years. The assaults involved fondling the girl's breasts and vagina, persuading the girl to masturbate him and suck his penis, and rubbing his penis against her. His sentence of 3 years was reduced to 2 years on appeal.

In studying the various U.K. cases the sentiments expressed in Renouf are pertinent to the situation this Court faces today. "This case has caused the court great anxiety. It is difficult to distill a principle from the cases which have been decided by way of sentences in offences such as this. Perhaps the answer is that each case must depend upon its own facts and the facts are infinitely various and protean in form" (per French J.) It appears from a quick perusal of the U.K. cases, ignoring guilty pleas, first offence and other variables, that a considerable number of sentencing on appeal converge around 2 years. A quick perusal of the authorities cited earlier in relation to indecent assaults in Fiji suggests a convergence of sentencing to between 18 months to 2 years - whether on guilty pleas or after trial. No principles are discernable in the sentencing for such offences.

The Court has also studied the guidelines provided in D.A. Thomas: Principles of Sentencing (2nd Edition ppl25 - 130). Thomas makes an interesting observation in regards to indecency with small children: "The length of sentence, within the range of twelve months to five years, appears to depend more on the number of offences committed on the present occasion and the offenders previous history of similar behavior than on the inherent gravity of the individual offence" (p128, emphasis added). In relation to overseas cases, e.g. in U.K., it is pertinent to note that those jurisdictions have wider range of sentencing options including hospital orders and psychiatric probation orders. In Fiji no such options are available.

In this case, for example, the learned Magistrate in her sentencing remarks states: "He has no regard whatsoever of the sexual indignities and the long term psychological trauma that her (sic) daughter will suffer for the rest of her life. He is 50 years and daughter is 17 years" (p.20 of the Record). The complainant was medically examined on the standard Police Medical Officers Report form. No psychological assessment was conducted. While the complainant appeared to be a confident and mature person, this Court is in no position to assess the long term effects of the indecent assault on her. Nor the effect of the loss of trust etc of a father-daughter relationship and any family disorientation arising out of the incident. More importantly, the Court has no psychiatric assessment or background information to indicate whether the Appellant has a sexual problem or is depressive or dysfunctional. Does he have the (proclivity) to repeat such indecency?

The Court notes the learned Magistrates observations on theAppellant ... "Although the complainant was subjected to such act of gross indecency, the accused did not at any try or attempt to have sexual intercourse with her. She was weak and helpless. He had all the opportunity to have sex with her but he didn't. Though the complainant felt his erected penis, she did not see it out, nor was there any evidence that he tried to have sex with her.... He knew he had all the opportunities but nothing happened because that was not his intent. They even spent 2 hours in the plantation alone after that but still nothing happened" (p.17 of the Record). There is no history of any previous sexual However, the complainant in her evidence did state: "....I felt suspicious about him. He used to peep at me whilst having my shower" (p10 of the Record). Both the victim and the mother suggest that they can trust him and have faith he will not commit a similar offence. The Court at this late stage does not find it efficacious to order psychiatric assessments on the Appellant and the victim.

It is clear from a perusal of the authorities available to this Court that the range of sentences for such offences vary quite markedly. The Courts have emphasised the need to consider each offence on its facts, including age of the victims and the offender, the relationship between the parties the nature of the indecency etc. Despite the differences in the facts and circumstances the variation in sentences is quite marked. The issue of disparity arises. In this regard I reiterate the concerns expressed by Lyons J. in the case of Chandar Sen (opcit at p3);

"I must say that Magistrates and Judges in this country appear to be severely disadvantaged in that there is not a central collection point for sentencing information from which to draw in times of need. It appears that sentencing offenders is simply a matter of an exercise of the discretion of each individual judicial person with little or no opportunity to establish a parity in sentencing. This is particularly disadvantageous to those judicial persons who preside in areas outside of the capital for they are often denied the opportunity of discussing the matters with their fellows to obtain a proper range of the "tariff" applicable to any one offence. Regrettably, when the courts pass sentences which vary significantly from one offender to another, notwithstanding there is similarity in the offences, it serves to create an impression in the general public that the court system is unjust. This further serves to create a lack of confidence and respect for the law with a consequential breakdown in discipline. This is a most unfortunate state of affairs. One hopes that all of us judicial persons combine to assist in formulating a simple system to assist, in particular, our fellows in the outlying areas."

Lyons J then went on to express the view that: "whilst agreeing that it is necessary for the Courts to set strong deterrent sentences, it is just as necessary that the court have some parity in sentencing unless the courts wish to continue to run the risk of decreasing their credibility in the eyes of the public" (pp 5-6). The learned Chief Justice, Sir Timoci Tuivaga had in 1990 also expressed similar sentiments: "Nothing could undermine the confidence of the public in the judicial system more than when different Courts pass widely varying sentences on similar offences perpetrated in similar circumstances" ("Uniformity of Sentencing - a Desireable Goal" Fiji Law Talk May - August 1990 p1). Similar sentiments were expressed in the N.Z. case of Lawson cited earlier.

As the Court has indicated earlier no principles are discernable in the sentencing for offences in the cases considered by the Courts in Fiji. No uniformity of approach is apparent. This Court is currently constrained to attempt to consider guidelines. Such guidelines will need a consideration of wider issues of sentencing for sexual assaults -deterrence, victim impact studies, psychiatric assessment, counseling options, and the wider controversies on the effectiveness of various sentencing aims and principles. An abhorrence to such crimes, given the social/cultural/religious environment of Fiji, is not in itself adequate.

The Court has indicated earlier that it could not fault the judgment and the principles adopted by the learned Magistrate in sentencing the Appellant. Nevertheless the case has caused the Court a great deal of anxiety. The disparity in the sentences meted out by the Courts in Fiji is a particular matter of concern. The Appellant feels aggrieved by the apparent severity of his sentence in relation to other indecent assault cases which he has put before the Court. However, each case varies on its own facts. The sentence of 4 years for indecent assault is on the top of the tariff for such offences. One also has to be conscious that most cases of Rape, which Magistrates' Courts regularly deal with, attract a maximum sentence of 5 years, even where serious violence is involved. In this case there was serious violence to induce the victim to succumb to the Appellant's desires. For this he was charged in Count 1, and he pleaded guilty. The sentence of 2 years imposed by the learned Magistrate is appropriate for this. However, for indecent assault the maximum sentence is 5 years.

The Court feels comforted in quoting from Webee v O'Sullivan [1952] SASR 65 at 66 that: "The Courts should endeavour to make the punishment fit the crime and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the Court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest". In short, justice has to be tempered with mercy.

It is perhaps best to reflect on the wider approach to sentencing expressed by Lord Lane, a former Chief Justice of England in Regina v Bibi (1980) 1 WLR 1193, at 1194:

"this case opens up wider horizons because it is no secret that our prisons at the moment are dangerously overcrowded. So much so that sentencing courts must be particularly careful to examine each case to ensure, if an immediate custodial sentence is necessary, that the sentence is as short as possible, consistent only with the duty to protect the interests of the public and to punish and deter the criminal.

Many offenders can be dealt with equally justly and effectively by a sentence of six or nine months imprisonment as by one of 18 months or three years. We have in mind not only the obvious case of the first offender for whom any prison sentence however short may be an adequate punishment and deterrent but other types of case as well.

The less serious types of factory or shopbreaking; the minor cases of indecency; the more petty frauds where small amounts of money are involved; the fringe participant in more serious crime: all these are examples of cases where the shorter sentence would be appropriate.

There are, on the other hand, some offences for which, generally speaking, only the medium or longer sentences will be appropriate. For example, most robberies; most offences involving serious violence; use of a weapon to wound; burglary of private dwelling houses; planned crime for wholesale profit; active large scale trafficking in dangerous drugs. These are only examples. It would be impossible to set out a catalogue of those offences which do and those which do not merit more severe treatment. So much will, obviously, depend upon the circumstances of each individual offender and each individual offence.

What the court can and should do is to ask itself whether there is any compelling reason why a short sentence should not be passed. We are not aiming at uniformity of sentence: that would be impossible. We are aiming at uniformity of approach" (emphasis added).

The above sentiments are as valid today as in the 1980s especially given the controversies surrounding the differing aims of sentencing, the over crowding of our prisons etc.

The Court has considered all relevant factors discussed above. It is also mindful of the facts of this case, in particular the age of the Appellant and victim and the aggravating factors. It is also sensitive to the mitigation and reconciliation, and very conscious of the disparities. The Court finds the sentence of 4 years for Count 2 out of line with authorities considered. A shorter sentence of 2½ years would be as just and effective given the background and circumstances of the Appellant. The Court concurs with the learned Magistrate that this sentence should be served concurrently with that on Count 1. The effect is that the Appellant will serve a total of 2½ years imprisonment and not 4.

The Court orders are as follows:

1) The Appeal against the sentence in Count 1 of the Offence charged is dismissed;

2) The Appeal against the sentence in Count 2 of the charge is partially allowed. The sentence of four years is set aside and a sentence of 2 ½ years is substituted;

3) The above sentences are to be served concurrently.

Appeal against Sentence allowed.

Marie Chan