Ram v State [2015] FJSC 26; CAV12.2015 (23 October 2015)

IN THE SUPREME COURT OF FIJI
AT SUVA
CRIMINAL APPELLATE JURISDICTION

PETITION FOR SPECIAL LEAVE TO APPEAL NO: CAV 12/2015

IN THE MATTER OF AN APPEAL
from the decision of the Court of Appeal of Fiji in Criminal Appeal No: AAU0108/2011.
[Lautoka High Court HAC009/04]

BETWEEN:

FELIX RAM
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon. Chief Justice Anthony Gates
President of the Supreme Court
The Hon. Mr. Justice Saleem Marsoof PC
Judge of the Supreme Court
The Hon Mr. Justice Brian Keith
Judge of the Supreme Court

Counsel: Mr. J. Savou for the Petitioner
Mr. M. Delaney for the Respondent

Date of Hearing: Thursday 8th October 2015
Date of Judgment: Friday 23rd October 2015

JUDGMENT

Gates P

[1] The Petitioner seeks special leave to appeal his sentence for a single count of rape. On 12th October 2011 having entered an unequivocal plea of guilty to the charge, an offence of rape contrary to section 207(1) and (2)(b) of the Crimes Decree, he was sentenced by a judge at the Lautoka High Court to a term of 11 years imprisonment with a non-parole period of 9 years.

Facts

[2] At the time of sentence the Accused was said to be 57 years old. On the day fixed for his trial, he applied to change his plea to “Guilty.” He was originally a saw miller, but latterly had been working as a security guard. He was a first offender. A priest and a pastor gave character references for him. Bail conditions it was said prevented him from seeking forgiveness from the 9 year old victim.

[3] He was staying with the victim’s family at Korolevu. He was related to the victim’s father. On 14th March 2010 the mother left home to visit her husband (the father) in hospital. She entrusted the victim and her elder brother to the petitioner’s care till she could get back.

[4] The judge was informed:

“After dinner the two children went to sleep on a mattress. The boy asked the accused to sleep on the mattress with them as his mother has not yet returned. The accused blew out the candle and joined them on the mattress. The boy told the victim to lie in the middle between him and the accused. While lying down the accused pulled down the girl’s panties and used his fingers to indecently invade her. The victim felt pain and tried to push his hand away, however the accused persisted. The next morning the young girl told her mother what had happened. The accused was chased from the house and the Police informed.”

[5] The judge said in relation to such incidents:

“The maximum penalty for rape is life imprisonment and the Courts have recently been handing down very heavy sentences on offenders against children. Sexual offending against children in this country has become far too prevalent and it is the hope that harsh sentences will send out a clear message to would be perpetrators that our children are to be protected from such unrestrained immorality.”

[6] Such comments are endorsed by this court.

[7] His Lordship referred to the levels of sentences meted out in cases of rape on children and mentioned three examples:

(a) 16 years for rape of a 13 year old Tamanitoakula HAC28.2010
(b) 12 years for rape of a 9 years old Jioji Mara HAC.2010
(c) 11 years for rape of a 9 years old Drotini AAU0001.2005S

[8] The judge accepted the petitioner’s remorse as genuine and that at the time of the offence he had come to his sense and desisted.

Appeal to Court of Appeal

[9] The Notice of Appeal against sentence went before the single judge. His lordship granted leave on the two grounds raised. They were:

1. The Learned High Court Judge erred in law and in fact when he failed to deduct the time the Appellant spent in remand.
   
2. The Learned Trial Judge erred in fact and law when he failed to justify the imposition of a non-parole period considering the circumstances of the Appellant.
   

[10] A slight confusion crept into the judge’s reasoning for his Lordship said at para [4] “The learned judge did not give any reasons for his decision to fix the non-parole period.” This was reversing the purport of section 18(2) of the Sentencing and Penalties Decree 2009 which provided:

“18(2) If a court considers that the nature of the offence, or the past history of the offender, make the fixing of a non-parole period inappropriate, the court may decline to fix a non-parole period under sub-section(1).”

The sentencing judge had not declined to fix a non-parole period, so there was no requirement to give reasons as indicated in section 18(2).

[11] However counsel for the Petitioner in this appeal very properly realized he could not proceed on the petitioner’s grounds as set out in his initiating letter and therefore abandoned them.

[12] On the morning of the appeal to the Court of Appeal the petitioner through his counsel sought to raise a further ground against sentence, namely that the sentence was harsh and excessive. He was allowed to do so, and the Court of Appeal covered that fresh ground in its judgment.

[13] The Court of Appeal acceded to the ground in relation to the time spent on remand not being taken into account and suitable discount being given for such time. The Court reduced the previous sentence of 11 years imprisonment with a non-parole period of 9 years to a sentence of 8 years 9 months with a non-parole period of 7 years 6 months.

Fresh Ground raised in Submissions

[14] Having properly abandoned the ground contained in the petition counsel for the petitioner sought to raise a fresh ground set out in his written submissions filed to this court on 8th September 2015.

[15] The ground raised the question:

“whether the imposition of the non-parole period pursuant to Section 18(1) of the Sentencing and Penalties Decree 2009 deprived the petitioner from accessing full remission as allowed under Section 27 and 28 of the Prisons and Corrections Act 2006.”

[16] This issue has been raised and decided in other cases, including one in the present sittings. Either that decision will cover the argument or the issue must be raised in the proper way in other proceedings. The Court is not disposed to allow fresh grounds to be raised at the 11th hour solely in the written submissions.

Harsh and Excessive

[17] The understandable intention of the petitioner is to seek some further reduction of penalty in the sentence, in this case a lesser term of imprisonment.

[18] The Court of Appeal, whose decision is sought to be impugned before us, examined the circumstances of Drotini’s case (supra) and also a decision of this court, Anand Abhay Raj v The State [2014] FJSC 12; CAV0003 of 2014, 20th August 2014. In Raj the court approved a sentence of 16 years for a stepfather convicted of raping a 10 year old child [4 counts] and indecent assault [1 count]. The non-parole period was fixed at 12 years.

[19] In arriving at an appropriate sentence in the instant case, the learned judge had used a starting point of 14 years. The Court of Appeal thought that was too high in view of the starting point selected in Drotini and Raj, namely 10 years and 12 years respectively “which were cases where there were penile rapes on more than one occasion.”

[20] The sentencing judge no doubt did not wish to lessen the gravity of digital over penile rape.

[21] The casting of the offence of rape in the Crimes Decree is such that no distinctions are drawn as to gravity of offending dependent on the object used to penetrate or of the orifice of the victim penetrated. No separate penalties are prescribed. Sufficient no doubt is the unwanted invasion, the violation of the person, the forcible intrusion into the privacy and body of another.

[22] This is not the occasion for a guideline judgment. In an appropriate case this court, upon invitation pursuant to section 6(1) of the Sentencing and Penalties Decree, will look more deeply into the issue. It is a task not to be undertaken lightly. Whilst bearing in mind statutory variations between England and Fiji, courts will nonetheless derive useful assistance and persuasive directions from the UK Sentencing Guidelines in the approach to sentencing philosophy and the calculation of sentence.

[23] In Regina v Ismail [2005] The Times, March 7th 205, Lord Woolf CJ said:

“The fact that the present offence was oral rape did not mean that it was any less serious than vaginal or anal rape. It was true that there would be no risk of pregnancy in the case of oral rape, that was a relevant factor, but there were dangers in oral rape of sexually transmitted diseases, particularly when no protection was adopted by the assailant.

In the court’s judgment, it could not be said that in approaching the question of sentencing any distinction should be made because of the category of rape.

In some cases one would be more offensive than another to the victim. It was very much a subjective matter.”

[24] That is not to say there are no variations in the effect upon the victim depending on the particular penetration that has occurred whether by means of the penis, a finger, or a piece of wood. In Ismail the Chief Justice emphasized the importance of Victim Impact Statements, a facility not always available in Fiji for resource reasons.

[25] In this case we are informed of pain having been caused to the 9 year old girl, but not as to whether she had required any medical treatment thereafter or whether she had suffered any psychological distress. Courts will be wise therefore to tread carefully before downgrading the type of penetration suffered, and instead to focus on the overall impact on the victim. The real consideration is, whatever the intruding object used, how horrific were the overall circumstances of the crime to the victim.

[26] Factors to be considered in such cases could be:

(a) whether the crime had been planned, or whether it was incidental or opportunistic;

(b) whether there had been a breach of trust;

(c) whether committed alone;

(d) whether alcohol or drugs had been used to condition the victim;

(e) whether the victim was disabled, mentally or physically, or was specially vulnerable as a child;

(f) whether the impact on the victim had been severe, traumatic, or continuing;

(g) whether actual violence had been inflicted;

(h) whether injuries or pain had been caused and if so how serious, and were they potentially capable of giving rise to STD infections;

(i) whether the method of penetration was dangerous or especially abhorrent;

(j) whether there had been a forced entry to a residence where the victim was present;

(k) whether the incident was sustained over a long period such as several hours;

(l) whether the incident had been especially degrading or humiliating;

(m) If a plea of guilty was tendered, how early had it been given. No discount for plea after victim had to go into the witness box and be cross-examined. Little discount, if at start of trial;

(n) Time spent in custody on remand.

(o) Extent of remorse and an evaluation of its genuineness;

(p) If other counts or if serving another sentence, totality of appropriate sentence.

[27] Overall in the categorization of such offences, this offence with its particular circumstances was not of the most serious and abhorrent type. The Court of Appeal was correct in reducing the starting point from 14 years to 12 years. His criminal act was a single incident.

[28] The reduction of 2 years for the remorse, and the mitigation provided in the support letters of the priest and the pastor were correctly taken into account.

[29] The granting of 3 years for the late plea was, if anything, generous. After all this was a change of plea at the door of the court when the trial was about to commence. The victim would have been already brought to court. Another court might not have given as generous a discount as this.

Conclusion

[30] There is in effect no arguable ground before us. The petitioner’s appeal to the Court of Appeal achieved a sizeable reduction of his term of imprisonment. The final figure for his sentence has been properly calculated. The community is rightly concerned that anyone who molests or rapes a young child will bring a severe penalty upon himself. That message cannot change. When the child was left by her mother in the petitioner’s care he grossly abused that trust. He is a first offender, and for him as well as for the child and her family, the incident was both a gross disappointment and a most serious crime. Special leave must be refused and the decision of the Court of Appeal confirmed.

Marsoof J

[31] I have read in draft, the judgment of Chief Justice Gates P and I agree with his reasons, conclusions and orders proposed.

Keith J

[32] I agree entirely with the judgment of Gates P. For the reasons he gives, I would refuse special leave to appeal.

Gates P

[33] In the result:

(i) Special leave is refused.
(ii) The decision of the Court of Appeal is confirmed.
(iii) The petitioner’s sentence of 8 years and 9 months with a non-parole period of 7 years 6 months is confirmed.

Hon. Justice Anthony Gates
President of the Supreme Court

Hon. Justice Saleem Marsoof PC
Justice of the Supreme Court

Hon. Justice Brian Keith
Justice of the Supreme Court

Solicitors for the Petitioner: Office of the Legal Aid Commission
Solicitors for the Respondent: Office of the Director of Public Prosecutions