Kumar v State [2018] FJSC 30; CAV0017.2018 (2 November 2018)

IN THE SUPREME COURT OF FIJI
AT SUVA

CRIMINAL PETITION NO: CAV 0017 of 2018
[Court of Appeal No: AAU 0126/13]

BETWEEN:
VIJAY KUMAR
Petitioner

AND:

THE STATE

Respondent

Coram: Ekanayake, J
Keith, J
Chitrasiri, J

Counsel: Ms. M. Fesaitu for the Petitioner
Dato’ S. Alagendra for the Respondent

Date of Hearing: 18 October, 2018
Date of Judgment: 2 November, 2018

J U D G M E N T

Ekanayake, J

[1] I have read the draft judgments of Hon. Keith, J and Hon. Chitrasiri, J.

I agree with the conclusions of both of them with regard to appeal against the conviction. In respect of the appeal against sentence I agree with the reasoning and conclusions of Chitrasiri, J that special leave should be granted, the sentence imposed by the Court of Appeal should be quashed and the sentence imposed by the Learned High Court Judge be restored. I agree with the views expressed by Chitrasiri J, regarding sentencing guidelines also.

Keith, J

Introduction

[2] The rape of children and juveniles by both close relatives and members of their extended family has become increasingly prevalent over the years. Some people have described it as reaching epidemic proportions. Moreover, the courts are said to be passing a wide range of sentences for offences of this kind. The Director of Public Prosecutions wishes to bring a measure of uniformity to the sentencing process for this class of case. Indeed, he wishes to provide the higher courts with the opportunity to consider whether the current sentencing practice for offences of this kind still meets the needs of Fijian society. He has chosen to make this appeal the vehicle for the higher courts to address the matter. The mechanism he has decided to use is the one provided for by section 6(1) of the Sentencing and Penalties Act 2009, which enables the Supreme Court to consider whether to give a guideline judgment, or to review one which has already been given. All cases, though, have to be considered in the light of their own particular facts, and this case is no exception. We address those facts first as well as the time of filing of the petition and the petitioner’s application for leave to appeal against his conviction, before turning to the wider question of the appropriate sentencing range in cases of this kind.

The filing of the petition

[3] A petitioner has 42 days from the date of the decision of the Court of Appeal to file his petition for special leave to appeal to the Supreme Court. The decision of the Court of Appeal in this case was dated 1 June 2018. Accordingly, the petition had to be filed by 12 July 2018. It was not filed until 17 July 2018. It was therefore 5 days out of time. That was not brought to our attention before the hearing. On the contrary: in his written submissions, counsel for the petitioner wrote in para 1.2 that “a timely petition” had been filed. That error was not referred to by counsel for the State in her written submissions.

[4] The petitioner himself was not to blame for the late filing of his petition. His counsel, Mr Michael Fesaitu, candidly told us that he had known that the petition had to be filed by 12 July 2018, but that he had simply overlooked it. Because (a) the delay was short, (b) the petitioner was blameless, and (c) no prejudice was caused to the State (indeed, counsel for the State, Dato’ Shyamala Alagendra, told us that the State was not opposing an application to enlarge the time), I would extend the petitioner’s time for filing the petition by the 5 days necessary to validate it.

The facts of the case

[5] The petitioner is Vijay Kumar. I trust that I shall be forgiven for referring to him as Kumar from now on for convenience. He was 56 years old at the relevant time. The girl who he is alleged to have raped was his granddaughter. She was then only 8 years old. On the evening in question – 7 April 2013 – she was staying with her grandparents at their home in Nasoso. Her account was that that she went to sleep that evening at about 8.00 pm on a mattress in the sitting room with her grandmother and uncle. She woke up when she felt someone putting their finger in her vagina. She discovered that she was sitting on her grandfather’s lap, and that her knickers had been pulled down. She started to cry, and he told her not to. He stopped when she got up to go. She did not say how long it had gone on for, or how far he had penetrated her, but she did say that it had been painful.

[6] The next morning she told her grandmother what had happened. Her grandmother told her to tell her teachers about it, and that it was what the girl did. It was her school who called the police. They interviewed her that day, and had her examined by a doctor the following morning. His evidence was that her labia were swollen and her hymen had been torn. There was some inflammation, and her symptoms were consistent with her vagina having been penetrated by something recently. Kumar gave evidence at his trial. He said that nothing out of the ordinary had happened at all on the evening in question, and he denied ever penetrating his granddaughter with his finger.

[7] A man does not have to have penetrated a woman’s vagina with his penis to be guilty of rape in Fiji. It is sufficient if he penetrates her vagina with his finger: see section 207(2)(b) of the Crimes Act 2009. Two of the three assessors expressed the opinion that Kumar was guilty, and that was the view of the trial judge, De Silva J, as well. He must have believed that the girl’s evidence was true and accurate as he expressed himself convinced that the prosecution had proved its case beyond a reasonable doubt. Accordingly, he convicted Kumar of rape contrary to section 207 of the Crimes Act.

[8] When it came to sentence, the judge took 11 years’ imprisonment as his starting point. The features which he regarded as aggravating Kumar’s offending were the age of the girl, the fact that she had become sexualised at such a young age, the traumatic effect that his offending would have on her life, the lack of any remorse on his part, and the breach of trust inevitably involved in this kind of offending. That took the appropriate sentence up to 13 years’ imprisonment. The features of the case which the judge regarded as mitigation were the fact that his family were dependent on him (which I have taken to mean as financially dependent on him), that he had a daughter aged 5 who was asthmatic, that he himself was diabetic, as well as his age since he was 57 by the time of the trial. The judge thought that those factors justified a reduction in the sentence of one year. That brought the appropriate sentence down to 12 years’ imprisonment. However, Kumar had been in custody on remand for over 7 months, and the judge reduced the ultimate sentence by that amount. Accordingly, the sentence which the judge passed was one of 11 years’ and 5 months’ imprisonment. He fixed the non-parole period at 10 years.

The appeal to the Court of Appeal

[9] Kumar applied for leave to appeal against his conviction on a number of grounds. Leave to appeal was given on one ground alone. That related to what the judge had said in his summing-up about the complaints which the girl had made on the following day. The Court of Appeal (Chandra, Gamalath and Goundar JJA) dismissed the appeal. In his judgment, Chandra JA, with whose judgment the other members of the Court agreed, said that although there were deficiencies in the judge’s summing-up on this topic, there was no miscarriage of justice when the evidence as a whole, including the medical evidence, was considered. In other words, the Court of Appeal was applying the proviso to section 23(1) of the Court of Appeal Act 1949 because it considered that no substantial miscarriage of justice had occurred.

[10] Kumar had also applied for leave to appeal against his sentence. A number of grounds were relied on. He was given leave to appeal on just one of them. That was that the judge had failed to take into account the fact that he had had no previous convictions and was therefore a first-time offender. In fact, he did have previous convictions, but the Court of Appeal nevertheless reduced his sentence because of the lapse of time since the last one. It reduced his head sentence to 11 years’ imprisonment, and substituted a non-parole period of 9 years for the period of 10 years fixed by the trial judge.

The petition for leave to appeal against conviction

[11] The sole ground of appeal now relates to the use which the Court of Appeal made of the medical evidence. The argument is a narrow one, and focuses on a single passage in the judgment of Chandra JA (para 21), in which he wrote:

“The complainant was 8 years old, therefore the issue of consent did not arise. The medical evidence confirmed that there was penetration. Therefore the guilt of the Appellant was adequately established through the evidence of the complainant and the medical evidence.”

The argument advanced by Mr Fesaitu was that the medical evidence in this case did not really support the prosecution’s case. It merely confirmed that there had been penetration of the girl’s vagina, but not by whom or with what. It followed that the only evidence on which the prosecution could rely was the girl’s evidence, and it was therefore wrong for the Court of Appeal to say that the case against Kumar had been proved by the girl’s evidence and the medical evidence.

[12] I cannot go along with this argument at all. In the passage complained of, Chandra JA was doing no more than going through the ingredients of the offence of rape. He was saying that because consent could not be an issue in the case in the light of the girl’s age, the only issue was whether Kumar had indeed penetrated her vagina with his finger. The medical evidence was evidence of penetration – and recent penetration at that. The girl’s evidence was that (a) it was Kumar who had penetrated her, and (b) that he had done so with his finger. It was in that sense that Chandra JA meant that the case against Kumar had been proved by the girl’s evidence and the medical evidence.

[13] It will be recalled that the Court of Appeal concluded that despite the deficiencies in the summing-up about the complaints which the girl had made shortly afterwards, there had been no substantial miscarriage of justice. That is more problematic. For that reason, it is a topic which needs to be addressed even though it is not advanced as a ground of appeal. The relevant complaint was the one the girl made to her grandmother, not what she was subsequently to tell her teachers as they were not called to give evidence. As is well known, the fact that the victim of sexual abuse complains about it to someone shortly afterwards – “recent complaint” to use lawyers’ shorthand for it – does not amount to corroboration of the victim’s account. That is because it does not come from an independent source, and treating it as corroboration would offend the prohibition on relying on previous consistent statements. It is admissible only to the extent that it shows consistency on the part of the complainant. It supports the credibility of the complainant’s account because her evidence about what happened to her is consistent with what she was saying at the time or shortly afterwards. In such circumstances, the assessors (or the jury in trial by jury) should be given a direction to that effect.^[1]

[14] The judge addressed the question of corroboration in paras 53 and 54 of his summing-up. He told the assessors that the girl’s evidence did not have to be corroborated. They could express the opinion that Kumar was guilty on the basis of the girl’s evidence alone. However, he added that it was open to the assessors to look for corroboration of her evidence, by which he meant independent evidence supporting her account of what had happened to her. The medical evidence was such evidence. If the jury accepted that evidence, it would be open to the assessors to conclude that it supported her account that she had been penetrated recently by something.

[15] So far, so good. It is what the judge had said earlier in his summing-up which gives cause for concern. After summarising the evidence of the girl’s grandmother, including her evidence of what the girl had told her the following morning about what had grandfather had done to her, the judge had said this about the grandmother’s evidence at para 37 of his summing-up:

“You saw her giving evidence in Court. She had given prompt answers to questions put to her by the defence counsel. It is up to you to decide whether you could accept her evidence beyond reasonable doubt. If you accept her evidence it corroborates the evidence of the [girl] regarding recent complaint.”

[16] It is a little unclear what the judge meant by that. He could have been saying that the grandmother’s evidence supported that part of the girl’s evidence in which she had said that she had complained to her grandmother about what Kumar had done to her. If that was what the judge meant, it would have been an impeccable direction. On the other hand, he could have been saying that the grandmother’s evidence supported the girl’s account of what Kumar had done to her. If that was what the judge meant, it would have been a serious misdirection: it would have been directing the assessors that a particular part of the evidence amounted to corroboration of the girl’s account when in truth it did not. It all turns on whether, when the judge referred to “recent complaint”, he was talking about the fact of the complaint or the substance of the complaint.

[17] In my opinion, the judge is likely to have had the former in mind. I say that for two reasons. First, if he was saying that the girl’s complaint to her grandmother corroborated her account of what had happened to her, there would have been no need to add the words “regarding recent complaint”. It would have been sufficient for him to say that what she told her grandmother corroborated her evidence. He must have added the words “regarding recent complaint” in order to explain that it was the making of the complaint which was being corroborated, not its substance. Secondly, when the judge told the assessors what could amount to corroboration, he spoke only of the medical evidence. He did not refer in that context to the complaint the girl had made to her grandmother.

[18] The judge did not give the assessors the specific direction referred to in [12] above, and that was why Chandra JA correctly described the summing-up as “inadequate in some respects”. But given the girl’s evidence, the consistency in her account and the medical evidence, I think it very unlikely that the assessors who were in the majority or the judge himself would have come to a different conclusion about Kumar’s guilt if that specific direction had been given. In the circumstances, I think that it was open to the Court of Appeal to apply the proviso to section 23(1) of the Court of Appeal Act on the basis that no substantial miscarriage of justice had occurred.

[19] There is one comment I should make before turning to the petition for leave to appeal against sentence. After a majority of the assessors had expressed the opinion that Kumar was guilty, the judge said in para 5 of his judgment:

“I find the verdict of the majority of the assessors were not perverse. It was open to them to reach such a conclusion on the evidence. I concur with majority verdict. Considering all I find the accused guilty as charged in respect of the count of Rape.”

Similar language was used by the trial judge in a case which came before the Supreme Court in April. That was Tawatatau v The State [2018] FJSC 2. I said at para 52:

“In that passage, the judge appeared to be saying that since it had been open to the assessors to find the petitioner guilty, he would accept their verdict. If that was what he meant, it could be argued that he was saying that he could only come to a different conclusion from the assessors if their opinions were perverse. That would, of course, have been an erroneous approach for him to have taken, because the determination of the guilt of a defendant is for the judge. He is not, to use the language of section 237(2) of the Criminal Procedure Decree, ‘bound to conform to the opinions of the assessors.”

[20] Having considered the matter, I have concluded that the judge could not have meant what he might have appeared to be saying. Before this passage in his judgment, the judge had said that he was convinced that the prosecution had proved the case beyond reasonable doubt. That observation would have been inconsistent with him thinking that he was obliged to follow the opinions of the assessors unless their opinions were perverse. It might be said that the judge was a little unwise to use language which laid him open to possible criticism, but that is all.

The petition for leave to appeal against sentence

[21] As is well known, section 4(2)(i) of the Sentencing and Penalties Act requires the court to have regard to the offender’s previous character when sentencing an offender. The sole ground of appeal relates to the Court of Appeal’s treatment of what was said to be Kumar’s limited offending history. The reduction in his sentence by 5 months is said to be insufficient. No examples were cited to us of what the discount should be, whether in cases in general or in cases of this type in particular.

[22] At one stage, it looked as if the Court of Appeal had been misled by the defence into thinking that Kumar had no previous convictions. As I shall demonstrate, that is not the case, but to do so it is necessary to set out the relevant sequence of events. I start with what the trial judge was told. What he was told appears in the parties’ written submissions on sentence. The defence had told him in para 4.4 of its written submissions that Kumar had 3 previous convictions for minor offences, the latest of which had been in 2004. The prosecution had told him on the penultimate page of its written submissions that Kumar had 7 previous convictions. A record of Kumar’s convictions was not before the trial judge, and we do not know whether he ever sought to find out what the correct position was. He did not refer to Kumar’s offending history – whatever it was – when he passed sentence.

[23] When the single judge came to consider Kumar’s notice of appeal to the Court of Appeal, he referred in para 16 of his ruling to Kumar being “a first time offender”. This was, of course, different from what the trial judge had been told by both the prosecution and the defence. I cannot tell what made the single judge think that Kumar was a first time offender, but there is no question of him having been misled by the defence: the notice of appeal did not say that Kumar had no previous convictions. But it was on the basis that he thought that Kumar was a first time offender that the single judge gave Kumar leave to appeal to the Court of Appeal against his sentence. It is true that Kumar’s then counsel (who had not represented Kumar at his trial), in her written submissions to the Court of Appeal after leave to appeal had been given, referred to Kumar’s “previous good character”. That was the genesis of the belief that the Court of Appeal had been misled by the defence into thinking that Kumar was a first time offender. But Kumar’s counsel was only proceeding on the understandable assumption that what the single judge had said was correct.

[24] Fortunately, the Court of Appeal was not misled by the error on the part of the single judge. It noted in para 26 of its judgment that the defence was saying that Kumar had 3 previous convictions for minor offences, and that his last offence had been in 2004. It also noted that the prosecution was saying that he had 7 previous convictions. Again, though, a list of Kumar’s previous convictions was not provided to the Court of Appeal, and it did not seek to clarify the position. It presumably thought that it did not need to. Whether the prosecution or the defence was right about the number of Kumar’s previous convictions, the Court of Appeal thought that the fact that Kumar’s last conviction had been in 2004 justified a reduction in his sentence. It said at para 28:

“The learned trial Judge has not considered the submissions made regarding sentencing referring to the fact that though the Appellant had previous convictions, that the last offending had been 9 years prior to the commission of the present offence. The appellant deserved some credit for same and the failure to take this factor into account as a mitigating factor was an error in the sentencing discretion.” (Emphasis supplied)

So what the Court of Appeal was giving Kumar credit for did not relate to the number of his previous convictions, but to the fact that the last one had been some time previously. It did not regard the number of his previous convictions –whether 3 or 7 – or their nature as material. Otherwise it would have called for a list of them. For the Court of Appeal, what was significant was the lapse of time since the last one.

[25] In order for us to evaluate whether there should be a further reduction in the sentence in the light of his limited offending history, we asked to be provided with a list of Kumar’s previous convictions. It was provided to us following the hearing. It revealed that he had a total of 7 convictions between 1985 and 2004. He had never served a term of imprisonment though for an offence of larceny in 1987 he had received a suspended sentence. The rest of his convictions were for minor offences of violence or threatening violence and public order, but I note that his first conviction was for indecently annoying a female. The important thing for present purposes, though, is that what the Court of Appeal regarded as critical – namely when his last conviction had been – was entirely correct. So not only was the Court of Appeal not misled by the defence. It was not misled at all about the feature of the case which in its view justified a reduction in Kumar’s sentence. It is for that reason that I find myself in respectful, but fundamental, disagreement with Chitrasiri J whose judgment I have read in draft.

[26] In my opinion, there is no basis for saying that, in the light of his record, there should be a further reduction in his sentence, and I would therefore have refused him special leave to appeal against his sentence. Having said that, because it looked to us at the time of the hearing that the Court of Appeal may have been misled by Kumar or his legal team, we told counsel that. After taking Kumar’s instructions, he told us that Kumar no longer wished to pursue that part of his petition which sought leave to appeal against sentence. Having now satisfied myself that there was no question of the Court of Appeal having been misled, I do not think that Kumar should have been told something which may have caused him to think that he was at risk of such a finding, which might well have resulted in the Court thinking that the sentence passed at trial should be restored. Since there was, for the reasons I have given, no question of him or his legal team having misled the Court of Appeal on the issue which the Court of Appeal regarded as decisive – the date of his last conviction – there can, in my opinion, be no question of Kumar being at risk of the original sentence being restored. Not that that matters. Since I would have refused him special leave to appeal against his sentence, it does not matter whether the application for leave to appeal is refused on its merits or on its withdrawal.^[2]

[27] I appreciate, of course, that because Ekanayake and Chitrasiri JJ have concluded that the sentence passed on Kumar by the High Court should be restored, they have had to address the questions (a) whether the Supreme Court has the power to prevent him from withdrawing that part of his petition which sought special leave to appeal against his sentence, and (b) if so, whether using his petition which sought a reduction in his sentence is a permissible mechanism for increasing it. It has, of course, not been necessary for me to consider those issues.

Increasing sentences for the rape of children and juveniles

[28] The impact of an increase in Kumar’s case. The Director of Public Prosecutions gave notice of the State’s intention to seek a guideline judgment for sentences for the rape of children and juveniles in its written submissions dated 24 September 2018, supplemented by further written submissions dated 9 October 2018. No written submissions in response were filed on behalf of Kumar. That was not altogether surprising. If the Court decided that the current sentencing practice for the rape of children and juveniles should be reviewed, any new sentencing practice would not apply to Kumar. It would only apply to offenders whose offences took place after the promulgation of our judgment. Dato’ Alagendra conceded that when the Court put that proposition to her. There was, therefore, no need for Kumar’s legal team to respond to the State’s submissions at all.

[29] The position of the Legal Aid Commission. Having said that, Kumar is represented by counsel who works in the Legal Aid Commission. We thought that the Legal Aid Commission might wish to make representations on the current sentencing practice for the rape of children and juveniles. Indeed, we would have been more comfortable if we had had the benefit of submissions from the Legal Aid Commission on an issue as important as this. We therefore gave the Commission the opportunity to make such submissions as it chose. As it was, we were informed that the Commission took a neutral stance on the issue and had decided not to make any submissions on the topic.

[30] The current sentencing practice. The maximum penalty for rape is imprisonment for life.^[3] For many years, the courts in Fiji followed the guideline laid down by the Court of Appeal in England in Billam v R (1986) 8 Cr App R (S) 48 that the starting point for a single offence of rape without any aggravating or mitigating features should be 5 years’ imprisonment. That starting point would be increased or reduced depending on the facts of the particular case. That starting point was increased to 7 years’ imprisonment by the Court of Appeal in Kasim v The State [1994] FJCA 25. The Court said:

“It must be recognized by the Courts that the crime of rape has become altogether too frequent and that the sentences imposed by the Courts for that crime must more nearly reflect understandable public outrage. We must stress, however, that the particular circumstances of a case will mean that there are cases where the proper sentence may be substantially higher or substantially lower than that starting point.”

[31] The rape of children and juveniles, by which I mean those under the age of 18, comes into a different category. That was recognised by the Court of Appeal in Drotini v The State [2006] FJCA 26. At paras 16-18, the Court said:

“[16] There are few more serious aggravating circumstances than where the rape is committed on a juvenile girl by a family member or someone who is in a position of special trust. The seriousness of the offence is exaggerated by the fact that family loyalties and emotions all too often enable the offender or other family members to prevent a complaint going outside the family. If the child then remains in the family home, the rapist often has the opportunity to repeat the offence and to hope for the same protection from the rest of the family.”

[17] Cases of rape by fathers or step fathers appear before the courts in Fiji far too frequently and, in such cases, the starting point should be increased to ten years. Where there are further aggravating circumstances beyond those basic circumstances, such as repeated sexual molestation of any nature, threats of violence or actual violence or evidence that the offender has attempted to persuade other family members to help cover up the offences or discourage complaint to the police, there should be substantial increases above that starting point.

[18] In any such case, there are few possible mitigating circumstances beyond a plea of guilty and the sentencing court should be careful to evaluate any matters put forward as suggested mitigation against the family situation. Thus, for example, whilst subsequent concern for, or assistance of, the victim following rape on a stranger may be accepted as some mitigation of the offence, a similar situation in a family rape would do little to mitigate the initial breach of trust. In the present case, the appellant made no attempt to avoid his daughter becoming pregnant and we regard that as a substantial aggravation of the breach of trust.”

It is important to note that this case really addressed only one category of rape of a child or juvenile, namely where the offender was a family member or otherwise in a position of “special trust”.

[32] It is apparent that the starting point of 10 years’ imprisonment laid down in Drotini is no longer applicable. There is no longer a starting point which applies to all cases. Instead, an appropriate range of sentence (sometimes called the tariff) has been identified. That range is 10-16 years’ imprisonment, and was articulated by the Court of Appeal in Raj v The State [2014] FJCA 18 and endorsed when Raj got to the Supreme Court: [2014] FJSC 12 at para 58. The Court of Appeal had said at para 18:

“Rapes of juveniles (under the age of 18 years) must attract a sentence of at least 10 years and the accepted range of sentences is between 10 and 16 years.”

No authorities were cited in support of that proposition, and it looks as if the Court of Appeal was simply spelling out the range within which sentences for the rape of children and juveniles were usually passed.

[33] Dato’ Alagendra drew our attention to a series of cases between Drotini and Raj in which Thurairaja J said that the tariff for sentencing in the case of the rape of a child or juvenile was 10-16 years’ imprisonment: see The State v NK [2010] FJHC 510 at para 22, The State v SE [2011] FJHC 737 at para 14, The State v Nado [2012] FJHC 953 at para 8 and The State v Rokabola [2012] FJHC 1198 at para 4. That showed, she said, that the tariff of 10-16 years’ imprisonment had been in place since at least 2010. That is true, but I am sceptical whether any reliance should be placed on those cases. First, the correct approach had been laid down by the Court of Appeal in Drotini, and it was not for the High Court to review that approach. Secondly, the cases cited by Thurairaja J did not support his proposition. Most of them were concerned with rape in general, not the rape of children or juveniles. And those which were concerned with the rape of children or juveniles were all first instance decisions, and were no more than examples of what the trial judge thought was the appropriate sentence in that particular case. These cases can, in my opinion, be respectfully put to one side.

[34] That is not to say that the current tariff is not 10-16 years’ imprisonment. Raj has been universally accepted up to now as the last word on the topic. The tariff of 10-16 years’ imprisonment for the rape of a child or juvenile has been consistently applied by all levels of the courts in Fiji. It may have rested on a shaky foundation in the sense that the Court of Appeal in Raj was merely declaring what sentencing practice had by then become rather than laying down a new tariff. But the Supreme Court nevertheless thought that 10-16 years’ imprisonment was the appropriate tariff, and that remains the position today.

[35] The shift from the approach in Drotini (adopting a starting point which can be increased or reduced to reflect the aggravating and mitigating factors) to the approach in Raj (identifying a range within which the sentence should normally fall) is significant. We do not know whether the change in mechanism was deliberate, and I shall return to that later. But it is important to remember that a tariff is no more than a guideline, and it has frequently been said that guidelines are different from tramlines. By that is meant that although the ultimate sentence would usually fall within the tariff, there may be exceptional aggravating or mitigating factors which justify a sentence outside the appropriate range. So although judges are expected to pass a sentence within the range of 10-16 years’ imprisonment for the rape of a child or juvenile, it is, of course, open to them in an exceptional case to go outside that range if that is necessary.

[36] The scourge of child sexual abuse. Having identified the current sentencing practice, I turn to what has driven this application for a guideline judgment. It goes without saying that the rape of children and juveniles is a truly shocking crime. Victims of offences of this kind will be utterly confused by what has happened, and their sense of humiliation will be profound. They will realise that they have been used unashamedly and treated without any regard for their own feelings. Their sense of self-worth will often have been irreparably damaged. The trauma which they will inevitably experience could well be life-long. All aspects of their development are likely to be affected: some experience learning difficulties, other perform less well at school than might otherwise have been the case, and invariably they suffer from low self-esteem. It is for these reasons that the courts have consistently said that those convicted of the rape of children and juveniles must expect heavy sentences which truly reflect the gravity of the crime.

[37] Moreover, these offences take place invariably, albeit not exclusively, within the family or by someone who the child or juvenile is likely to trust. The Court in Drotini identified in the passage already cited how that often plays out. A misplaced sense of loyalty to the abuser may result in pressure being brought to bear on the victim not to take the matter further. When that happens, the victim will invariably have to put up with their abuser still being around. Not only will that result in the victim living in fear of a repetition of the abuse, but the abuser has the opportunity to take advantage of his victim again.^[4]

[38] The impetus for change. Child sexual abuse is said to be on the increase in Fiji. The Office of the Director of Public Prosecutions began releasing statistics on crimes of a sexual nature in May 2015. Those statistics show that 138 indictments were filed in the High Court between May and December 2015 for offences of a sexual nature. The victims in 87 of those cases were children and juveniles. Those numbers had increased to 228 indictments in 2016, in which 150 were children and juveniles, and to 444 indictments in 2017, in which 130 were children and juveniles. The statistics for January to September 2018 show a similar trend. 185 indictments were filed in the High Court during those 9 months for offences of a sexual nature. The victims in 111 of those cases were children and juveniles, of whom 65 were under the age of 13. It is important to note that these statistics are not limited to the rape of children and juveniles. They also include other offences of a sexual nature against children and juveniles - attempted rape, abduction with intent to rape, abduction with intent to have carnal knowledge, indecent assault, defilement and sexual assault.

[39] Without statistics for years prior to 2015, it is not possible to tell whether offences of child sexual abuse are on the increase. Indeed, there is a school of thought that child sexual abuse in Fiji is currently no worse than it always has been, and that such anecdotal evidence as there may be of an increase in recent years is attributable to a greater willingness for victims to come forward, and to a better understanding on the part of the police of offences of this kind which has resulted in them appearing to complainants to be more sympathetic to them than might previously have been the case. But what is unquestionably the case is that child sexual abuse is very prevalent in Fiji. Such statistics as we have tell their own story. Indeed, the statistics only include those cases where the police have become involved and where the prosecuting authorities have decided that the evidence is sufficiently strong to justify the filing of indictments.

[40] It is the prevalence of cases of child sexual abuse in Fiji despite the heavy sentences which the courts have been passing in recent years which has driven the State’s application for a review of current sentencing practice. Longer sentences are needed, so it is said, to be more effective as a deterrent, to mark society’s abhorrence of crimes of this nature, and to make the punishment fit the crime.

[41] The suggested tariff. In Ram v The State [2015] FJSC 26, Gates CJ said at para 26:

“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 not a task to be undertaken lightly. Whilst bearing in mind statutory variations between England and Fiji, courts will nevertheless derive useful assistance and persuasive directions from the UK Sentencing Guidelines in the approach to sentencing philosophy and the calculation of sentence.”

Taking its cue from that observation, the State relies on the definitive guideline issued by the Sentencing Council for England and Wales on sexual offences which came into effect in April 2014. Based on that guideline, the State contends that the tariff for the rape of a child or juvenile should be increased to 11-19 years’ imprisonment.

[42] The guideline needs to be looked at with some care. Two preliminary points should be made. First, the section in the guideline relating to the rape of children and juveniles gives different tariffs for different degrees of harm suffered by the victim and different levels of culpability on the part of the offender. That is because it was recognised that the courts might be faced with a wide range of offending behaviour. So there are three separate categories of harm (categories 1, 2 and 3) and two levels of culpability (levels A and B). It has not hitherto been the practice in Fiji to formalise the categories of harm and levels of culpability in that way. Secondly, the guideline identifies both a starting point and a sentencing range for cases falling within each category of harm and each level of culpability. As we have seen, that has not been the practice in Fiji. The courts have either identified the starting point (as in Drotini) or the sentencing range (as in Raj), but not both.

[43] All of this dictates the steps which the courts in England and Wales must take in order to arrive at the ultimate sentence. The court first identifies the starting point by reference to the degree of harm suffered by the victim and the level of culpability on the part of the offender. That applies to all offenders irrespective of their pleas or previous convictions. The court then proceeds to decide where within the appropriate sentencing range the sentence should come. That is where the various aggravating and mitigating factors are taken into account, and the guideline provides a lengthy list, albeit not an exhaustive one, of what those aggravating and mitigating factors might be. In an exceptional case, a judge may decide to go outside the sentencing range, but they have to be satisfied that it would be contrary to the interests of justice to follow the guideline. Subject to that, having decided where within the sentencing range the sentence should come, the court then discounts that sentence for any plea of guilty, and then reduces the sentence further to reflect any period during which the offender has been on remand in custody awaiting trial or sentence.

[44] The guideline also referred to what it called “a campaign of rape”. That phrase has been held by the courts in England and Wales to include cases where the offender has repeatedly raped the same victim (normally many times over a lengthy period rather than on just a few occasions) as well as cases where there have been multiple victims. The guideline says that in such cases “sentences of 20 years and above may be appropriate”.

[45] The tariff of 11-19 years’ imprisonment suggested by the State is derived from the most serious category of harm in the guideline (category 1) and both levels of culpability (levels A and B). The starting point for a category 1 case with the higher level of culpability (level A) is 16 years’ custody with a sentencing range of 13-19 years’ custody. The starting point for a category 1 case with the lower level of culpability (level B) is 13 years’ custody with a sentencing range of 11-17 years’ custody. The State’s proposal is that the new tariff should reflect both these sentencing ranges.

[46] This proposal ignores two things. First, the section in the guideline on which the State relies applies only to the rape of children under the age of 13. So if the tariff proposed by the State was to be adopted in Fiji, it would have to be modified to reflect the fact we are concerned with children and juveniles under the age of 18, or a separate tariff would have to be identified for children and juveniles between the ages of 13 and 18. Secondly, and more importantly, the State’s proposal takes insufficient account of the different degrees of harm suffered by victims. It adopts the sentencing range in the guideline only for the most serious degree of harm (category 1). It does not reflect the sentencing ranges for less serious degrees of harm (categories 2 and 3). Thus, the starting point for a category 2 case with the higher level of culpability (level A) is 13 years’ custody with a sentencing range of 11-17 years’ custody. The starting point for a category 2 case with a lower level of culpability (level B) is 10 years’ custody with a sentencing range of 8-13 years’ custody. That is also the starting point and the sentencing range for a category 3 case with the higher level of culpability (level A), but the starting point for a category 3 case with the lower level of culpability (level B) is 8 years’ custody with a sentencing range of 6-11 years’ custody.

[47] It is, of course, necessary to compare like with like. That means comparing the current sentencing range in Fiji of 10-16 years’ imprisonment for the rape of children and juveniles under the age of 18 with the sentencing ranges in the English guideline of 6-19 years’ custody for the rape of children under the age of 13. On that footing, the range is not that much different. The upper end of the range in Fiji is 3 years less than the upper end of the range in England, but the lower end of the range in Fiji is 4 years more than the lower end of the range in England. We just have a narrower range in Fiji than in England.

[48] Indeed, it looks to me as if the English guideline (if adopted in its entirety in Fiji) would not make much of a difference to the sentences passed in Fiji. I say that for two reasons. First, under the English guideline judges determine where the sentence should be in the appropriate sentencing range before discounting that sentence to reflect any plea of guilty. The result is that the ultimate sentence (even before discounting it further to reflect the offender’s time in custody on remand) could well be below the lower end of the appropriate sentencing range. That is not the current sentencing practice in Fiji. Any discount for a plea of guilty will not normally bring the sentence down to below the lower end of the sentencing range of 10-16 years’ imprisonment.

[49] Secondly, Dato’ Alagendra drew our attention to a number of cases in the High Court over the last couple of years to illustrate what she described as the “mounting” number of cases in Fiji

“ ... where women and young children are being subjected to (i) repeated and sustained rapes and abuse over a protracted period of time (ii) in some cases the abuses are extremely cruel and (iii) in some cases there are multiple victims who are raped and abused by the same accused.”

Some of those cases involved the rape of women aged 18 or over, but when you ask what the sentences would have been in the other cases if the English guideline had been adopted in its entirety in Fiji, it looks, for the most part, as if they would have been much the same as the ones which were in fact passed.

[50] There is one other difference between England and Fiji which should not be overlooked, and that relates to when prisoners are released. In England they are released once they have served half their sentence, though they will be on licence for some considerable time thereafter and are liable to be recalled to prison if they break the conditions of their licence. In Fiji, judges invariably fix a non-parole period, and when that is coupled with the Commissioner of Prisons’ current practice relating to the remission of sentence for prisoners who have been made the subject of a non-parole period, they will not be released until relatively close to the completion of the head sentence. The practical effect of that is that even if the sentences passed in England are a little longer than those passed in Fiji (which I do not believe to be the case), offenders will actually spend much longer in prison in Fiji than their counterparts in England.

[51] Finally, it is essential to put into the scales the point already made in this judgment, namely that judges are not bound in every case to select a term within the sentencing range of 10-16 years’ imprisonment. There may be exceptionally aggravating and mitigating factors which will justify a departure from the sentencing range, and judges should not feel inhibited about going outside the sentencing range in a case which calls for condign punishment. Indeed, when it comes to conduct which can truly be described as a campaign of rape, sentences of 20 years’ imprisonment or more may be appropriate. For all these reasons, I have not been persuaded that the sentencing range in the English guideline of 11-19 years’ custody for a category 1 case of the rape of a child under the age of 13 should be applied to Fiji for the rape of children and juveniles under the age of 18.

[52] That is not to say that the English guideline has no value in Fiji. It contains extremely helpful lists of the factors which should be taken into account when determining the degree of harm to the victim and the level of culpability of the offender, as well as the many factors which can aggravate as well as mitigate the offender’s offending. They provide a very useful checklist for judges to use when they decide where within the appropriate sentencing range the sentence should be.

[53] A new tariff nevertheless? The fact that I have concluded that the English guideline – or a variation of it – should not be adopted in Fiji does not mean that a new tariff is not called for. We have no statistics showing the prevalence of the rape of children and juveniles in other countries, and we therefore have no empirical basis for saying that things are worse in Fiji than elsewhere. But there is nevertheless a strong sense in the community, based on anecdotal evidence only, that the situation is particularly bad in Fiji – perhaps because so many family members live together and in particularly close proximity to each other, perhaps because of more complex social reasons which we are not equipped to identify. There is also a strong sense of public outrage that something needs to be done before the problem can truly be described as an epidemic. These are important considerations which should not be ignored. It may be that adding a year or two to the tariff will be ineffective as a deterrent: men who are disposed to commit these crimes are unlikely to be put off by the knowledge that if they are caught, tried and convicted, their sentence will be a little longer. But the need to pass sentences which reflect the gravity of the crime, as well as the imperative of its emphatic denunciation, may call for a modest increase in the tariff.

[54] In my opinion, the current tariff of 10-16 years’ imprisonment for all offences of the rape of children and juveniles is too blunt an instrument. We should distinguish between the rape of children and juveniles under the age of 18 and the rape of children under the age of 13. I would increase the tariff for the rape of children under the age of 13 to 11-17 years’ imprisonment. That would reflect the community’s abhorrence of the sexual abuse of really young children. I would leave the tariff for the rape of children and juveniles under the age of 18 undisturbed, in the confident expectation that judges will depart from the tariff, as they do now, in those truly exceptional cases where greater punishment is called for, especially those cases where the offending amounts to a campaign of rape. That is, as I originally understood it, the effect of the last paragraph of Chitrasiri J’s judgment.

[55] The appropriate starting point. I return to the topic I flagged up earlier in this judgment. We have moved away from the mechanism in Drotini of adopting a starting point which should be increased or reduced to reflect the factors which aggravate and mitigate the offence to the approach in Raj of identifying the range within which the sentence should fall. That begs the question of where within the appropriate sentencing range the judge should start. This problem was highlighted in Seninolokula v The State [2018] FJSC 5. At paras 19 and 20, I said:

“19. There is here a difference in judicial opinion. In Koroivuki v The State [2013] FJCA 15, Goundar JA said at [26]: ‘As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff.’ On the other hand, a number of trial judges choose the lower end of the range as a matter of routine. For example, in Jemesa Gaunavinaka v The State [2017] FJHC 425, Perera J said at [24] that ‘the starting point of a particular offence should be construed as the minimum period of imprisonment a particular offence should attract’.

20. This difference of approach has to be resolved at some stage, but this is not the time to do so. The issue was understandably not raised by the defence: they were content with the fact that the judge had taken as his starting point, not just a term at the lower end of the range, but well below even that. Nor was it raised by the prosecution, no doubt because they were content to address the only ground of appeal relied on by the defence. The issue is one which requires careful and mature consideration, with the benefit of help from counsel, and neither of them were in a position to address the issue when it was tentatively raised by the court. I simply highlight it now to show that it needs to be engaged at some stage.”

[56] We raised this issue with Dato’ Alagendra. It was not a topic which she had considered. I make absolutely no criticism of her for that. Her focus was on the appropriate sentencing range, not what the starting point within that range should be. In the circumstances, this is not the occasion to engage with the issue. I am not troubled by that. Whatever methodology judges choose to use, the ultimate sentence should be the same. If judges take as their starting point somewhere within the range, they will have factored into the exercise at least some of the aggravating features of the case. The ultimate sentence will then have reflected any other aggravating features of the case as well as the mitigating features. On the other hand, if judges take as their starting point the lower end of the range, they will not have factored into the exercise any of the aggravating factors, and they will then have to factor into the exercise all the aggravating features of the case as well as the mitigating features. Either way, you should end up with the same sentence. If you do not, you will know that something has gone wrong somewhere.

[57] Two words of caution. First, a common complaint is that a judge has fallen into the trap of “double-counting”, ie reflecting one or more of the aggravating features of the case more than once in the process by which the judge arrives at the ultimate sentence. If judges choose to take as their starting point somewhere in the middle of the range, that is an error which they must be vigilant not to make. They can only then use those aggravating features of the case which were not taken into account in deciding where the starting point should be.

[58] Secondly, the lower of the tariff for the rape of children and juveniles is long. Sentences of 10 years’ imprisonment represent long periods of incarceration by any standards. They reflect the gravity of these offences. But it also means that the many things which make these crimes so serious have already been built into the tariff. That puts a particularly important burden on judges not to treat as aggravating factors those features of the case which will already have been reflected in the tariff itself. That would be another example of “double-counting”, which must, of course, be avoided.

Conclusion

[59] For these reasons, I would have varied the tariff for the rape of children and juveniles to the extent set out in this judgment. However, Ekanayake and Chitrasiri JJ take a different view. Chitrasiri J has told me that what he wanted to get across in the last few paragraphs of his judgment was that it was premature to give a guideline judgment in this area when (a) we had only received submissions from the State, and (b) when we had not had the benefit of the views of non-legal professionals, such as sociologists and criminologists, about the appropriate level of sentence in cases of this kind. He would therefore leave the tariff undisturbed for the time being, and make no distinction in the tariff dependent on the age of the victim, until a suitable opportunity arose for it to be considered in the way he thinks it ought to be considered. Their majority view must prevail, of course, and it follows that the court declines the invitation to give a guideline judgment.

[60] In his particular case, for the reasons I have endeavoured to give, I would refuse Kumar’s application for special leave to appeal against his conviction and sentence. However, since Ekanayake and Chitrasiri JJ take a different view about the outcome of Kumar’s application for special leave to appeal against sentence, the orders of the court must be the ones which they propose.

Chitrasiri, J

Introduction

[61] I had the opportunity of reading the judgment in draft of Keith, J and I agree with his conclusions reached in respect of the appeal against the conviction. Having read the draft judgment, I will now proceed to express my views on the issues raised by the petitioner. In doing so, I do not wish to elaborate on the facts of this case since Keith, J has sufficiently dealt with the circumstances under which the alleged incident had taken place. Hence, I will start from the point of the delivery of the judgment of the Court of Appeal against which the appeal to this Court had been lodged. Court of Appeal dismissed the appeal against the conviction but allowed the appeal against the sentence.

[62] In the Court of Appeal, leave had been granted by the Single Judge on the question of significance attached to the recent complaint evidence. Appellant’s complaint before the Court of appeal was on the manner in which the Trial Judge dealt with the recent complaint evidence. He alleged that the learned Judge’s summing-up to the Assessors on that point is erroneous. The ground of appeal formulated by the Single Judge in the Court of Appeal on the conviction is as follows.

“Leave to appeal against conviction is granted on the issue of lack of directions on the significance of the recent complaint evidence.”

Evidence at the trial

[63] Evidence show that the victim, in the following morning of the day in question, has told her grandmother of her bad experience that she faced on that day. Around the period the incident took place, victim had been under the care and custody of her grandmother since both her parents were living in the United States.

[64] Having heard the story of the child that morning, grandmother had told her to inform the incident to her teacher in the school. Accordingly, she had done so and the head teacher of the school had then called the Police and the victim then made a complaint to the Police. That shows the promptness of her complaint to the persons in her authority.

Appeal before the Court of Appeal

[65] The issue before the Court of appeal was on the manner in which the learned trial judge directed the Assessors to consider such a recent complaint evidence.

[66] In the Court of Appeal, in Paragraph 15 of his judgement, Chandra, JA has addressed his mind to the way in which the learned trial judge had dealt with, on the recent complaint evidence. In that, he has quoted paragraph 37 of the judgment of the learned High Court Judge. This paragraph 37 reads thus:

“37. You saw her giving evidence in Court. She had given prompt answers to questions put to her by the defence counsel. It is up to you to decide whether you could accept her evidence beyond reasonable doubt. If you accept her evidence it corroborates the evidence of the victim AS regarding recent complaint.”

[67] Justice Chandra,’s interpretation to the aforesaid wordings in the High Court judgment, is found in paragraph 16 of his judgment and it reads as follows:

“To my mind, the statement is qualified by the words, “the evidence of the victim As regarding recent complaint”. This would suggest that what the learned trial judge meant by that statement was that the evidence of PW2 corroborates the fact the victim related her story to her (PW2) and not the position that it was corroborative of the fact that the victim was raped by the Appellant.”

[68] Having said so, Chandra, JA also has stated that the manner in which the trial judge has referred to recent complaint may not at first sight be discernible. He then has stated that it should have been put to the Assessors in clearer language to avoid any confusion. Finally, he has said that it would seem that the directions by the learned trial judge regarding recent complaint was inadequate.

[69] However, in paragraph 18 of the judgment, His Lordship has stated that the manner in which the learned trial judge had dealt with the issue is to show that there was no requirement of corroboration, in proving rape.

[70] Thereafter, having considered the relevant paragraphs in the judgment of the High Court Judge, Chandra, JA has stated that there is no reference to the evidence of PW2 as to the need, if any, to look for independent evidence. He also has stated that this would support the position that when reference was made in relation to recent complaint evidence what he would have meant to convey was, perhaps, consistency of the victim’s evidence and not corroboration. He also has stated that the learned trial judge’s reference was to the fact that the case would stand or fall on the testimony of the victim. Accordingly, the view of the Court of Appeal was that what was conveyed to the Assessors was that the case of the prosecution had depended on the evidence of the complainant rather than the promptness in making her complaint.

[71] To my mind, the reasoning of Chandra, JA seems to be acceptable. Therefore, I do not see any error in the decision arrived at by the Court of Appeal on the question of law, formulated on the conviction. Moreover, it may have been the reason why there is no ground of appeal raised on the question of recent complaint evidence in the petition filed in this Court.

[72] The two questions of law raised in the petition filed in this Court do not relate to the conviction by the trial judge though it was strongly canvassed in the Court of Appeal. One question raised in the petition filed in this Court is on the manner in which the Court of Appeal looked at the evidence and the other is on the sentence. The ground of appeal formulated in the petition to challenge the conviction reads as follows:

“Court of Appeal erred in its findings that the Petitioner’s guilt is established by the medical evidence and thereby causing a substantial and grave prejudice”

[73] On the face of it, it seems that the way in which the first ground is formulated is erroneous or if not misconceived. That is because the Court of Appeal has never said that the guilt is established by the medical evidence alone. Relevant paragraph in this regard in the judgment of the Court of appeal [Para21] is as follows;

“21. The complainant was 8 years old, therefore the issue of consent did not arise. The medical evidence confirmed that there was penetration. Therefore, the guilt of the Appellant was adequately established through the evidence of the complainant and the medical evidence.”

(emphasis added)

[74] Accordingly, what the Court of Appeal has said was that it was the evidence of the complainant that supported the conviction in addition to the medical evidence. It has never said that the conviction was established only by the medical evidence. Indeed, doctor’s opinion alone, cannot establish guilt of the commission of an offence. Such evidence may support or go against establishing guilt for a particular offence. Therefore, it seems to me that the manner in which the appeal ground is formulated is misleading. In my view the aforesaid first question of law is erroneous/misconceived in law when looking at the manner in which it is formulated.

Grounds of Appeal

[75] Generally, the appeal grounds are being formulated in a petition of appeal is include legal grounds such as improper exclusion or admission of evidence, incorrect jury instructions, lack of sufficient evidence to support a finding of guilt, sentencing errors, assessors misconduct and prosecutorial misconduct etc. Moreover, in order to proceed with an appeal, petition of appeal should indicate the legal error with sufficient material and it should consist some sort of substance. Also, it should be clear to the mind of a reasonable man without any ambiguity.

[76] In this instance, the first ground of appeal is not clear enough or rather ambiguous. Such a ground may amount to misleading the Court as well. For these reasons alone, this ground of appeal should fail.

[77] However, Keith, J having considered the matters referred to in Section 7(2) of the Supreme Court Act has decided that the first ground of appeal does not meet the requirements referred to therein. Accordingly, he has decided to refuse leave in respect of the ground of appeal raised on the conviction. In the circumstances, I have no hesitation to concur with his decision as far as the first ground of appeal is concerned.

[78] Second ground of appeal is on the manner in which the sentencing tariffs were taken into consideration by the lower court when deciding the period of imprisonment. It reads as follows:

“Court of Appeal failed to give sufficient discount for the Petitioner’s previous good character”

Decision of the Court of Appeal

[79] In this instance, the Court of Appeal substituted the sentence of 11 years imprisonment with a non-parole period of 9 years imprisonment in place of 11 years and 5 months imprisonment with a non-parole period of 10 years which was the sentence imposed by the High Court. It was so decided after considering only the previous character of the petitioner. Petitioner, in his petition to this Court seeks further reduction of sentence, also on the basis of his good character.

[80] Section 5 of the Sentencing and Penalties Act provides the matters that are to be considered when considering the character of an offender at the time of sentencing. However, it is not an exhaustive list.

[81] Before the Court of Appeal, it was argued that the learned High Court Judge has failed to address his mind to the good character when the sentence was passed. Having accepted it as the correct position, the Court of Appeal reduced the period of imprisonment by 5 months and the non-parole period by one year. The reason as to why the said reduction was afforded to the petitioner is found in Paragraphs 28 and 29 of the Court of Appeal judgment. It reads as follows:

“[28] The learned trial Judge has not considered the submissions made regarding sentencing referring to the fact that though the Appellant had previous convictions, that the last offending had been 9 years prior to the commission of the present offence. The appellant deserved some credit for same and the failure to take this factor into account as a mitigating factor was an error in the sentencing discretion.

[29] The learned trial judge’s failure to consider such a factor when sentencing him would be a situation where a relevant consideration had not been taken into account as set out in the principles in Kim Nam Bae (supra) and thereby the learned trial Judge had erred. The Respondent concedes that there is merit in this ground and has invited this Court to act in terms of Section 23(3) of the Court of Appeal Act.”

[82] However, the variation of the sentence by the Court of Appeal had been made on the basis that the petitioner had only 3 previous convictions and the last of it had been 9 years prior to the commission of the offence committed in this case. This is evident by the contents in paragraph 26 of the Court of Appeal judgment. In that paragraph it is stated; that the submissions made on behalf of the appellant for mitigation, it has been stated that the Appellant had only 3 previous convictions. In that it is also mentioned that the State has not challenged that position though the learned Counsel for the State has merely stated that the appellant had 7 previous convictions. Counsel did not make any further attempt to establish the same.

[83] Under those circumstances, this Court needed to look at the certificate issued by the Criminal Records & Fingerprint Office in order to ascertain the correct position as to the previous convictions of the petitioner. This certificate was not available in the Court of Appeal record which contains the documents filed in the High Court as well. However, learned counsel for the State had this certificate in her hand and she tendered it to court for perusal. It is a communication dated 18^th October 2018 which is the date on which the hearing of this appeal was fixed. That shows, no such certificate was available at the time the sentence was pronounced either by the High Court or by the Court of Appeal.

[84] According to the said certificate, the petitioner was having 7 previous convictions and he had been found guilty for the offence of Indecently Annoying Female as well. It is an offence somewhat similar to the offence that he is convicted in this case too. Petitioner did not dispute the convictions found in the said Finger Print Report.

[85] In the circumstances, it is clear that the petitioner has misled the Court of Appeal when making submissions to reduce his sentence. If the Court of Appeal was made aware of the correct position as to the previous convictions, I am sure the Court of Appeal would have looked at it when considering the ground of appeal raised on the sentence. Accordingly, it is seen that a grave injustice is caused, if this Court does not interfere with the sentence imposed by the court of Appeal. Also, it seems to me that there is a substantial question of law particularly on the manner in which the concessions were given for the good character that is to be looked at by this Court.

Application for the withdrawal of the appeal

[86] At this stage, it is also necessary to mention that there was an application by the learned counsel for the petitioner to withdraw the second ground of appeal filed against the sentence. This application to withdraw was made even after having concluded the submissions made on behalf of the petitioner. By that time, counsel and his client who is the petitioner also has come to know that the certificate containing the previous record of the petitioner is in the possession of the Bench as well. Therefore, it is clear that the application for the withdrawal was made only after this Court realized the failure to inform the correct number of previous convictions to the Court of Appeal.

[87] Under those circumstances, it is seen that the application to withdraw the appeal against the sentence was not a genuine application. It is not incorrect to say that it was a step to avoid enhancing the punishment. Hence, such an application cannot be considered as a bona fide application for withdrawal made under Rule 15(1) of the Supreme Court Rules 2016 which depicts the law governing the procedure for withdrawal of appeals filed in the Supreme Court. Now, it is our task is to decide whether or not this belated application should be allowed.

[88] The said aforesaid Rule 15(1) reads thus;

“If a petitioner who has lodged a petition, referral or application desires to withdraw the same, must give notice to that effect to the Registrar and all parties to the proceedings who are directly affected by the petition, referral or application and upon whom a copy of the petition, referral or application has been served in accordance with these Rules.”

[89] As seen in the said Rule, the manner in which such an application is to be made is clearly stipulated and it requires giving advance notice to the Registrar in order to make an application to withdraw an appeal. Then the issue is whether the Court is empowered to allow such an application made in violation of the procedure referred to therein.

[90] Could the Court disregard an application for withdrawal made under this Rule, on the basis that it is defective since there is no specific form is mentioned in that provision to make the application. My answer is “no”.

[91] I will now refer to the omission to have a specific form prescribed under Rule 15(1) of the Supreme Court Rules. I am not inclined to say that the failure to specify a form under Rule 15(1) is an omission due to the oversight of the draftsman. Corresponding Rule in the Court of Appeal Rules, namely Rule 39 of 1949, states that an application for withdrawal in the Court of Appeal is to be made in the form set out in Schedule 2 therein. If no such form is given under the Supreme Court Rules, I do not see any wrong in using even the form set out under the Court of Appeal Rule to make the application.

[92] Such a cause of action is permissible under Rule 31 of the Supreme Court Rules 2016. It reads as follows:

“The High Court Rules and the Court of Appeal Rules and the forms prescribed in them apply with necessary modifications to the practice and procedure of the Supreme Court”.

[93] However, the important issue is whether the intention to withdraw is conveyed in an acceptable manner. Therefore, the Court, using its discretion shall have the power to determine the validity of the application depending on the circumstances under which the application for withdrawal is made.

[94] In Roqica v State [2015] FJSC 18; CAV 0010.2014, an application to withdraw a petition of appeal had been made before this Court. In that decision, consideration of a specific criterion is given when permitting withdrawal of a petition. Criteria shown in that is as follows:

“It is needless to stress that the purpose of an inquiry of this nature is to ascertain:

1. Why was it to be withdrawn,
2. Was any pressure brought to bear on him, and

100. The decision to abandon had been considered beforehand.
     

It shows that this court was inclined to exercise its discretion when allowing an application to withdraw a petition of appeal.

[95] Accordingly, it is my opinion that an application for withdrawal without notice to the Registrar should be either allowed or disallowed depending on the circumstances of each case and it be left to the Court to decide the issue in a judicious way.

Granting of Special Leave

[96] I have already described the circumstances under which the application for withdrawal was made in this instance. In short, it was an application to avoid enhanced punishment. It was a belated application too. The petitioner made this application upon realizing that he had misled the Court of Appeal when making his application to reduce the sentence on the basis of his good character. Furthermore, it must be mentioned that no inducement or threat was made on the petitioner by any party including the Bench, to make such an application. Therefore, it is my opinion that the application to withdraw the petition of appeal should be rejected.

[97] Then the next issue is whether this Court should grant special leave with regard to the second ground of appeal framed on the sentence. When a question of law is being advanced, the Court should first consider whether the leave should be granted to proceed with the appeal on that question. That is because the power under Section 98(5) of the Constitution, to review, vary, set aside or affirm decisions or orders of the Court of Appeal; or to make any other order necessary for the administration of justice canonly be derived once the step namely granting of leave, referred to in the preceding subsection, 98(4) of the Constitution is fulfilled. Moreover, the said power referred to in Section 98(5) of the Constitution is derived through a statutory provision and not through any other means such as inherent power of courts.

[98] Section 98(4) & (5) of the Constitution stipulate as follows:

“98(4) An appeal may not be brought to the Supreme Court from a final judgment of the Court of Appeal unless the Supreme Court grants leave to appeal.

(5) (a) review, vary, set aside or affirm decisions or orders of the Court of Appeal; or

(b) make any other order necessary for the administration of justice, including an order for a new trial or an order awarding costs.”

[99] In the circumstances, this Court is not empowered to consider and make orders under Section 98(5) of the Constitution unless the Court grants special leave under Section 98 (4) of the Constitution.

[100] Then the next question is whether this Court should grant leave to proceed with the second ground of appeal raised on the sentence imposed on the petitioner by the Court of Appeal. Accordingly, it is the duty of this Court to ascertain whether the said ground of appeal meets the criteria set out in Section 7(2) of the Supreme Court Act No.14 of 1998. This Section reads as follows:

“7(2) In relation to a criminal matter, the Supreme Court must not grant leave to appeal unless –

(a) a question of general legal importance is involved;
(b) a substantial question of principle affecting the administration of criminal justice is involved;
(c) or substantial and grave injustice may otherwise occur.”

[101] Appellate courts in Fiji have always been mindful and depended upon these factors when leave to appeal has been considered. Learned Judges have repeatedly referred to the criteria above, when special leave to appeal applications are being considered. [Aminiasi Katonivualiku v. State (2003) FJSC Crim. App. No.CAV 0001/1999s 17.04.2003, Dip Chand v. State CAV 0014/2012, Sharma v. State (2017) FJSC 5; CAV 0031.2016]

[102] Circumstances that have already been referred to, show that there exist a question of general legal importance in this instance. Furthermore, if the sentence imposed by the Court of Appeal due to concealing the number of previous convictions, the petitioner had, it would lead to the causing of substantial and grave injustice to the criminal justice system as well. Accordingly, acting in terms of Section 7(2) of the Supreme Court Act, I decide to grant leave to the second ground of appeal formulated on the sentence passed on the petitioner.

[103] In view of the failure to inform court of the correct picture as to the previous convictions of the petitioner, this Court cannot keep its eyes closed without giving its mind to it. Indeed, as I mentioned before, the petitioners conduct amounts to misleading the court.

[104] Be that as it may, had the Court of Appeal being made aware of those seven previous convictions, that court would have taken a different view in terms of the law.

Appeal against the sentence

[105] Accordingly, it is my opinion that there is a substantial question of principle affecting the administration of criminal justice also involved in this instance and if it is not corrected substantial and grave injustice may occur. Hence, this Court should address the issue of sentence imposed on the petitioner exercising its powers conferred under section 98(5) of the Constitution of the Republic of Fiji.

[106] As mentioned hereinbefore, the petitioner is having 7 previous convictions. Even though there is no conviction 9 years prior to the present conviction, the number of convictions the petitioner has, cannot be disregarded. Moreover, there is one previous conviction namely “Indecently Annoying Female” which also relates to causing harm to women. That also is one of the aggravating factors that should be considered when passing the sentence.

[107] As referred to above, it is my opinion that the reduction of the sentence by the Court of Appeal had been made because the learned Judges in that Court were not properly informed of the previous convictions of the offender. Now it is revealed that the submissions made in relation to the character of the petitioner were incorrect. It is wrong to have relied on those submissions. Therefore, the reduction made by the Court of Appeal on the ground of good character is not sustainable.

[108] Hence, I decide to set aside the sentence imposed by the Court of Appeal and restore the sentence imposed by the learned High Court Judge. Appeal of the petitioner stands dismissed.

Increasing sentences for the rape of children and juveniles

[109] I also take this opportunity to add to what Keith, J has said in relation to the current sentencing practice guidelines relating to child rape. Attention of this Court was made by the learned Counsel for the State on the increasing number of child rape in the past. She has made a strong request to review current sentencing practices and to formulate new guidelines in this regard. On this point, she has tendered exhaustive written submissions along with statistics to show the increasing number of rape on children had been committed. In the submissions, she has cited development of the law in this area, in other countries as well including the UK and South Africa. Supreme Court of Fiji also has signaled on this requirement of reviewing tariffs in the case of Ram v. State in which Chief Justice was presiding and Justice Keith was a member. [2015 FJSC 26]

[110] Present Tariff for the offence of child rape ranges from 10 to 16 years and the State is requesting it to make it between 11 to 19 years of imprisonment. [page 21 of the additional submissions dated 09.10.2018 of the State]

[111] I agree that it is of utmost importance to consider increasing sentences for the rape of children. However, it is a complex issue involving several factors in the society. Indeed, this involves several sociological and cultural issues that may be peculiar to Fiji. In this instance, we heard only the submissions of Counsel who appeared for the State. Legal Aid Commission did not make any submissions though they were given sufficient time to consider making submissions.

[112] Having looked at the draft judgment of Keith, J I observe that His Lordship has partly allowed the application of the State. In that judgment, Keith, J is inclined to have the tariff range increased from 11 to 17 years only in respect of the victims who are under the age of 13 years and to have the tariff to remain undisturbed when it comes to children between 13 to 18 years of age.

[113] In my view, such a division depending on the age of the child may prevent the Court imposing a sentence over and above the present tariff when it comes to children over 13 years of age. Judges may think it is not appropriate to increase the sentence for the children over 13 because the increase is only with regard to the victims under 13 years. Accordingly I must state that I am not in agreement to have the tariff increased as suggested by Keith J. I will leave it for the judges to exercise their discretion and to impose a greater punishment according to law where necessary and appropriate, depending on the circumstances of each case.

Orders:

By unanimous decision

1. Application to extend the petitioner’s time for filing his petition granted.
2. Application for special leave to appeal against conviction refused.

By a majority decision

1. Application for leave to appeal against sentence granted. Sentenced imposed by the Court of Appeal (11 years imprisonment with a non-parole period of 9 years) set aside. Sentence imposed by the High Court (11 years 5 months imprisonment with a non-parole period of 10 years) restored.
   

Hon. Justice C. Ekanayake
JUDGE OF THE SUPREME COURT

Hon. Justice B. Keith
JUDGE OF THE SUPREME COURT

Hon. Justice K. Chitrasiri
JUDGE OF THE SUPREME COURT

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^[1] See, for example, the summary of the position at common law by Prematilaka JA in The State v Likunitoga [2018] FJCA 18 at para 56. In some jurisdictions, the common law has been changed by statute: see, for example, section 120 of the Criminal Justice Act 2003 in England and Wales. But the common law still reflects the law in Fiji.
^[2] The Supreme Court’s power to increase an offender’s sentence is derived from section 14 of the Supreme Court Act 1998 and section 23(3) of the Court of Appeal Act 1949.
^[3] See section 207(1) of the Crimes Act 2009.
^[4] All this, and much more, has been addressed by the Research Team of the Independent Inquiry into Child Sexual Abuse in the UK. The Team has been investigating the impact of child sexual abuse on the lives of victims and their families, as well as its impact on society as a whole. The Team’s preliminary findings have been set out in a report which it characterised as “a rapid evidence assessment” prepared in July 2017. The report shows that the appalling impact which such abuse can have cannot be underestimated.