Kanaveilomani v State [2001] FJLawRp 48; [2001] 2 FLR 176 (21 June 2001)

SISA KANAVEILOMANI v STATE

High Court Criminal Appellate Jurisdiction
20 June, 2001 HAA015/01S

Rape – sentence – formula for magistrates to follow when unrepresented accused appear before them – unequivocal plea of guilty - whether previous sexual experience relevant to question of consent - principles of sentencing - 1997 Constitution s28; Criminal Procedure Code ss220, 222; Penal Code s149

The Appellant pleaded guilty to rape of a 19 year old secondary school student and was sentenced to 5 years imprisonment. He appeals against sentence. At the hearing of his appeal, he also sought to have his conviction set aside on the ground he was not legally represented. In a caution interview, the Appellant claimed consensual intercourse. In Court, he admitted facts and said the Complainant did not consent or that he did not know whether she consented. The Court found his plea of guilty unequivocal, given his admission of recklessness whether the Complainant consented or not. The appellate Court commented on the principles of sentencing.

Held – (1) Appellant was not prejudiced by the failure of the magistrate to inform him of his right to counsel. His plea of guilty was unequivocal. When unrepresented accused persons appear in the Magistrates' Court the magistrate must ask the accused if he/she wished to be represented by a lawyer. If the accused wishes then to proceed to plea without a lawyer, his answer must be recorded. He is then said to have waived his constitutional right to counsel. Although the magistrate did not follow that course of action, he did ensure that the Appellant understood the charge, and the element of the offence of rape he admitted to.

(2) Previous sexual experience is irrelevant to the question of consent and any question on this is therefore inadmissible.

(3) It is wrong in principle for magistrates to start at 5 years imprisonment for rape. A starting point is 7 years. If, after adjusting for mitigating and aggravating circumstances the sentence exceeds 5 years, the magistrate must commit to the High Court for sentence. A 7 year sentence was justified but an appellate court cannot now impose a sentence which the lower court could not impose.

Appeal against conviction dismissed. Appeal against sentence dismissed.

[Note: Act 13/03 amended s7 CPC to increase sentencing powers of Magistrates from 5 years to 10 years; cons in Sailosi Naulunibola v State [2001] HAA 050/00L 30 November 2001]

Cases referred in Judgment
Ananaia Nawaqa v State (2001) HBM 0014/00L 15 March 2001
Mohammed Kasim v State FCA Reps 94/291 AAU 21/93
Suren Singh & 4 Ors (2000) 2 FLR 127
Timoci Momotu v State (1995) 41 FLR 50

Appellant in person
Sofia Shah for the Respondent

20 June, 2001 JUDGMENT

Shameem, J
On 19th February 2001, the Appellant was sentenced to 5 years imprisonment, on his plea of guilty, for the following offence:

Statement of Offence

RAPE: Contrary to Section 149 and 150 of the Penal Code, Act 17.

Particulars of Offence

SISA KANAVEILOMANI, on the 16th day of February, 2001 at Samabula in the Central Division, had unlawful carnal knowledge of AMANDA LELA without her consent.

The Appellant now appeals against sentence. At the hearing of the appeal, he also submitted that his conviction should be set aside because he was not legally represented.

The facts of the case, as outlined by the prosecution are that the accused, who is 42 years old, climbed into the bedroom of the complainant, Amanda Lela, on the 16th of February 2001. At the time, the complainant was 19 years old and a Form 6 student at Cathedral Secondary School. The Appellant entered the complainant's bedroom between 5.30am and 6.30am, by climbing up a side wall to a balcony outside her room. He then entered her room. The complainant recognised him as a frequent visitor to the house, and brother to the lady with whom the complainant lived. She told him to leave, but he grabbed her hair and forced her to lie on the settee. He smelt of liquor. He muffled her mouth, undressed her and had sexual intercourse with her, without her consent. He then went to the kitchen to light a cigarette. The complainant got dressed, and complained to the owners of the house. The Appellant was then chased away from the house and the matter was reported to the police.

The complainant's medical report, which was tendered by the prosecution in the Magistrates' Court states that the complainant was distressed, some 4 hours after the rape. She had bite marks on her lips and breasts. On a genital examination, her hymen was found to be ragged, torn and bleeding. Semen was found in her vagina, and she found it too painful to walk. The doctor found that her medical condition was consistent with a sexual assault. Under the title "Any other relevant matters worthy of comment", the doctor, presumably in answer to the question posed of her by the police on page 1 of the report, recorded "patient is not virgin."

The Appellant was arrested and interviewed by the police. He said he had had sexual intercourse with the complainant, but that she had consented. He appeared in the Magistrates' Court on 19th February 2001. He elected Magistrates' Court trial. The charge was then read, and explained and the Appellant said he understood it. He pleaded guilty. The facts were read and the medical report tendered. The Appellant is then recorded as having said:

"Facts admitted: Yes we had sex. She did not consent. I didn't know whether or not she was consenting."

In mitigation the Appellant said he was 42 years old, separated from his wife, employed as a part time carpenter, said the complainant and he had had sex before, said he thought the victim did not like what he did and that he did not know if she consented, and asked for forgiveness. He said he has 6 children living overseas. He was convicted. The Learned Chief Magistrate said that the offence is serious, that he had taken into account the plea in mitigation, and that a custodial sentence was warranted. The Appellant was sentenced to 5 years imprisonment.

Conviction
In Suren Singh & Others v State Criminal Appeal No. 079 of 2000, I suggested a formula for magistrates to follow, to ensure that section 28 of the Constitution is complied with. When unrepresented accused persons appear in the Magistrates' Court the magistrate must ask the accused if he/she wished to be represented by a lawyer. If the accused wishes then to proceed to plea without a lawyer, his answer must be recorded. He is then said to have waived his constitutional right to counsel. Unfortunately the learned Chief Magistrate did not follow the suggested formula in this case.

The Appellant now says he was prejudiced by the fact that he was unrepresented. Such a complaint will inevitably be made, when the court fails to inform an accused person of his right to counsel.

Having said that, however, I note that the learned Chief Magistrate was careful to ensure that the Appellant understood the charge, and that in agreeing to the facts, the elements of the offence of Rape were admitted to. The Appellant said that he did not care whether the complainant consented or not. The mens rea for Rape includes recklessness.

In the circumstances, I do not consider that the Appellant was prejudiced by the failure to inform him of the right to counsel. I also consider that his plea of guilty was unequivocal. The appeal against conviction is therefore dismissed.

One last point. The medical report tendered by the prosecution records a statement that the complainant was not a virgin. It is not clear whether this was as a result of the rape, or whether this refers to previous sexual experience. Previous sexual experience is not admissible in a sexual offences trial unless the defence can show that such experience is relevant to the mens rea for rape. In other words, did the accused honestly believe that the victim was consenting, and was that belief based on his own consensual sexual experience with her? It is difficult to see how previous sexual experience could otherwise be relevant and therefore admissible. To ask this question of the doctor, and to tender the answer in the rape trial, or guilty plea proceedings, is doing the victim of the rape a great wrong. It is also evidence which is irrelevant and inadmissible and may allow the defence to cross-examine on previous sexual experience without having to show relevance. I would suggest that police officers filling out such reports refrain from asking questions about the victim's sexual experience.

Sentence
The Appellant says that the sentence of 5 years imprisonment is harsh and excessive, and that more lenient sentences for rape have been imposed in the Magistrates' Court.

State Counsel submits that the sentence is proper because of the Court of Appeal guidelines in Mohammed Kasim v The State Criminal Appeal No. 21 of 1993. She also submits that the Appellant was in a position of trust in relation to the complainant, that she was injured in the course of the rape and that there are no mitigating circumstances except for the guilty plea.

Different offenders in the courts who are convicted of the same or similar offence, do not always get the same sentence. Indeed in our system of sentencing which is based on individual offending (with the exception of offences which carry mandatory sentences) it would be surprising if all offenders got the same sentence. An offender is sentenced with regard to the seriousness of the offence, the character, age and antecedents of the accused, and with consideration for the totality of the offending.

Offenders convicted for rape will not always receive the same sentence. A first offender may get a considerably shorter term, than an offender who has previous convictions for rape. A man who rapes his daughter may receive a longer term than a juvenile who rapes his girlfriend. On the other hand, where a rape is particularly brutal, the circumstances of the offender may make very little difference to the length of sentence. The exercise of the judicial discretion in sentencing is not expected to result in a mathematical calculation designed to achieve consistent sentences. The judicial discretion is expected to be exercised to achieve consistency in approach to sentencing. It is for this reason that guideline judgments are useful. They set out the tariff, based on sentences imposed for an offence by the courts, and then set out matters which mitigate or aggravate the circumstances, requiring the sentencer to adjust up or down. This discretion must be exercised in a consistent manner in all cases, and because the sentencer is dealing with different individuals and circumstances each time, the result will obviously not be identical on each occasion. I set out these principles in some detail because it appears that the sentencing process is not well understood by Appellants, many of whom complain of inconsistency.

Rape sentencing however, puts the Magistrate in a difficult position. The Magistrate is limited to imposing a term of 5 years imprisonment. In Mohammed Kasim v The State (supra) the Fiji Court of Appeal suggested a starting point of 7 years imprisonment. A magistrate cannot impose 7 years imprisonment because that exceeds his jurisdiction, and if there are no mitigating circumstances other than that of good character, he/she cannot refer the matter to the High Court for sentencing. What then is the Magistrate to do?

In Mohammed Kasim (supra) the Court of Appeal said at page 6:

"We should add a brief comment in respect of rape sentences imposed in the Magistrate's Court. The maximum sentence in such cases for a single count is 5 years. It follows that ordinarily a Magistrate should commit a rape offender to the High Court for sentence unless there are clearly mitigating circumstances."

However in Timoci Momotu v State Crim. App. No. AAU0018 of 1994, the Court of Appeal considered the powers of the Magistrates' Court to commit to the High Court for sentence. The Court held (per Thompson JA and Quillam JA, Dillon JA dissenting), as follows:

"We come then to section 222(1) which we have set out earlier. This provides for the case of a trial which has proceeded in the Magistrate's Court to the point of conviction, and the question as to the circumstances in which the Magistrate may then commit to the High Court for sentence. The words used are clear. The Magistrate may do so if, on obtaining information as to the offender's character and antecedents, he is of the opinion that those matters (that is the character and antecedents) are such that greater punishment should be inflicted. Clearly this is additional to the circumstances and gravity of the offence, which have by then been established. The Magistrate must decide as a separate matter whether the character and antecedents disclose matters which make the offence a more serious one than the details of the offence itself have already shown."

The majority decision of the Court of Appeal makes clear that "evidence of character and antecedents" is not limited to evidence of previous offending. Although the Court did not list matters which reflect on character and which would justify committal to the High Court for sentence, it is common sense that given the jurisdictional limit of the Magistrates' Court, the broadest interpretation of matters reflecting on character, should be preferred. Matters such as an unsatisfactory employment or school record, a relationship of trust with the victim, and the previous convictions of the accused would all be matters which would fall within the scope of section 222. It is therefore desirable that the prosecution in the Magistrates' Court tender an antecedent history of the accused before mitigation, setting out such relevant matters.

Of course, as the Court of Appeal suggested in Mohammed Kasim (supra) the Director of Public Prosecutions may decide to exercise his discretion under section 220 of the Criminal Procedure Code, to refer the matter to the High Court for a trial. However, if the accused wishes to plead guilty, he will have to wait for the Preliminary Inquiry process, and for Information to be filed, before he can plead. The delay may result in unfairness to accused and victim alike. The section 220 option may also not be possible if the relevant file has not been referred to the DPP's Office by the police.

Turning therefore to the sentencing process, it is wrong in principle for magistrates to start at 5 years imprisonment, for an offence where the High Court starts at 7 years imprisonment. Irrespective, therefore, of the limits to their jurisdiction magistrates must, after hearing facts, antecedents and mitigation, start at 7 years imprisonment. The sentence must be adjusted downwards for mitigating circumstances such as the guilty plea. It must then be adjusted upwards for aggravating circumstances such as injuries to the victim. If having arrived at a proper sentence the sentence exceeds 5 years imprisonment, the magistrate must commit to the High Court for sentence, explaining the reasons (relevant to character) why he/she has decided to take that step. If, having arrived at a sentence, it does not exceed 5 years imprisonment, the magistrate can sentence in his/her own court.

The process therefore of sentencing for rape must be consistent whether the sentencer is a magistrate or a judge. The starting point in all courts must be 7 years imprisonment, and where the end result of the sentencing process exceeds the jurisdiction of the Magistrates' Court, the magistrate must commit to the High Court for sentence. Where however the accused has an unblemished character (considered in its broadest sense), then a committal for sentence is impossible, and any adjustment for good character and guilty plea must reduce the sentence to 5 years or less. Such an adjustment may result in a sentence which is manifestly lenient. However, such a result can only, after the decision in Timoci Momotu (supra) be cured by legislative reform. I would recommend the urgent attention of the authorities, to such reform.

Rape is a serious offence, and sentencing for rape is also a serious matter. The sentencing process must therefore reflect the seriousness of the case. As Gates J said in Ananaia Nawaqa v The State Miscellaneous Action No. HBM0014/ 2000L:

"In dispensing summary justice, a magistrate will find the handling of a rape case with as many as 8 accused, far from straightforward. Rape is one of the most serious cases for a Magistrate, indeed for any court, to handle. Such a case should be heard with special care and should not be rushed."

What of this case? The learned Chief Magistrate's sentencing remarks do not reveal whether he considered aggravating or mitigating circumstances which led to the adjustment of the sentence. However, the Appellant's previous convictions for Drunk and Disorderly Behaviour are relatively trivial.

Starting at 7 years imprisonment, the Appellant was entitled to a discount of 1 year's imprisonment for his guilty plea. However the violence used on the complainant, the invasion of the privacy of her own bedroom, and the age of the complainant, are all aggravating circumstances which warranted an adjustment up of 1 year. A sentence of 7 years imprisonment would have been justified, leading to a committal for sentence based on the accused's previous convictions. However, this court cannot now impose a sentence which the lower court could not impose.

In all the circumstances the sentence imposed is not excessive and the appeal is dismissed.

Appeal fails.

Marie Chan