Tabaki v Reginam [1977] FJSC 72; Criminal Appeal 121 of 1977 (25 November 1977)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

Criminal Appeal No. 121 of 1977

BETWEEN:

PAULA TABAKI

AND:

REGINAM

JUDGMENT

On the 26th September 1977 at Suva Magistrates Court the appellant was convicted after trial of living on the earnings of prostitution contrary to section 160(1)(a) of the Penal Code, keeping a brothel contrary to section 163(a) of the Penal Code and keeping a guest house without a licence contrary to section 4(2) of the Hotel and Guest Houses Act 1973, all three offences arising from the same set of facts.

The appellant was sentenced to a total term of eighteen months' imprisonment in respect of which he has appealed.

The appellant has two previous convictions for keeping a guest house without a licence which the trial Magistrate quite properly took into account when imposing sentences of imprisonment. Further, on the 28th October 1977 the appellant was convicted on his own plea of similar offences which were committed over two years ago, and was sentenced to total term of eighteen months' imprisonment to run concurrently with the sentence imposed herein.

However, taking into account the fact that the appellant is fifty six years of age and the particular circumstances of this case, I am of the opinion that the sentence is too severe.

A somewhat similar situation was considered by this Court in R. v. Sepeti Vakararawa (Cr. Appeal No. 13 of 1973) and I set out below three paragraphs of that judgment:

"The appeal against sentence is on the ground that it is harsh and excessive in the particular circumstances. The circumstances relevant to this ground are that the appellant was of previous good character, that none of the women involved was of good moral character, some of them being self-confessed prostitutes, that there is no evidence of control or coercion on the part of the appellant of the women involved, that none of the women was of tender years, and. that this would appear to be the first time in Fiji when a sentence of imprisonment has been imposed for these types of offence.

The Crown concedes that most of the women involved were experienced prostitutes who were making use of the facilities provided by the appellant and that none of them could be described as corrupted by the appellant, but nevertheless submits that a deterrent sentence was called for.

On a conviction for these types of offence the Courts draw a substantial distinction between a man who has forced women into prostitution and controlled their movements; and a man who has simply profited by associating with women who are already prostitutes and who would be plying their trade whether or not he provided facilities. The latter is a lesser evil. All the evidence in this case indicates that there was no element of corruption of the morals of the women in question by the appellant. Had there been, a sentence of imprisonment would have been well merited. The women appear to have been experienced prostitutes who, if the appellant's promises had not been available, would have plied their trade from other addresses.

The appellant certainly profited from their immoral earnings, but in these circumstances a pecuniary punishment is, in my view, more appropriate than a custodial one for a first offender."

It is quite clear from the facts of this case and the Crown concedes that the offences of living on the earnings of prostitution and keeping a brothel did not involve any question of corruption of women or any form of coercion. The women were common prostitutes who no doubt would have plied their trade whether or not the appellant's premises were available.

The sentences are set aside and in substitution therefore I impose a sentence of six months' imprisonment on each count concurrent, with effect from the 26th September 1977.

The sentences subsequently imposed on the 28th October will be dealt with by way of revision.

Grant, C.J.
Chief Justice

Suva,
25th November 1977