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Ratuva v State [2014] FJCA 57; AAU0008.2012 (16 April 2014)

IN THE COURT OF APPEAL
[On appeal from the High Court]

CRIMINAL APPEAL NO. AAU0008 OF 2012
[High Court Case No. HAC007 of 2008L]

BETWEEN:

SAVENACA RATUVA
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Mr. J. Savou for the Appellant
Mr. M. Delaney for the Respondent

Date of Hearing : 2 April 2014
Date of Ruling : 16 April 2014

RULING

[1] On 23 January 2012, the appellant was sentenced to a total term of 10 years' imprisonment after he pleaded guilty to four counts of rape and one count of indecent assault in the High Court. On 1 March 2012, he filed a Notice of Appeal against sentence. The Notice is dated 2 February 2012, but by the time it was forwarded to the Court of Appeal Registry by the Department of Corrections, the appeal was late by two weeks. Since the length of delay is not substantial, I extend the time of filing of appeal to 1 March 2012.

[2] The appellant is required to obtain leave to appeal against sentence pursuant to section 21(1)(c) of the Court of Appeal Act. Leave will be granted if the appellant can demonstrate that the learned High Court judge exercised his sentencing discretion either upon a wrong principle, or took into account irrelevant considerations, or mistook the facts, or failed to take into account some relevant considerations.

[3] The ground of appeal against sentence is as follows:

"The Learned Sentencing Judge erred in principle when he did not:

(a) treat the guilty plea separately from the mitigating factors;

(b) consider the length of time in remand separately from the guilty plea and co-operation with the police;

(c) discount the guilty plea after the mitigation and aggravating factors had been accounted for".

[4] The facts upon which the learned judge sentenced the appellant are contained at paragraph 3 of his sentencing remarks:

"The victim was an 8 year old girl attending school in the Western Division. The accused and the girl's mother are cousins and the girl calls him uncle. At the time of the offending the accused was living in the victim's home in a village in Ba. In all four counts of rape, the accused had forcibly taken the victim into a bedroom, had undressed her and then forcibly raped her. On three occasions the mother was away from the house and on the fourth occasion, the mother was cooking in the kitchen when the victim, changing out of her school uniform was forcibly assaulted. As to the indecent assault, the mother was out of the house and the victim was sleeping when the accused lay next to her and invaded her with his fingers".

[5] After referring to the facts and the relevant sentencing principles, the learned judge worked out the final sentence as follows:

"The accused is 35 years old and a farmer. He is married with a 7 year old adopted daughter.

I am told he is very remorseful and seeks forgiveness from all concerned parties. The most important mitigating feature is of course his co-operation with the Police from the very beginning and his pleas of guilty thereby saving Court's time.

For each count of rape I take a starting point of twelve years to reflect the severity of the offence. To this I add two years for the serious breach of trust in that he is, as an uncle, an adult in a supervisory role. I add two more years for the continued offending over a period of more than a year. From this interim total of 16 years, I deduct five years for the guilty pleas and his co-operation and to reflect the time already served and for his clear record I deduct one further year.

For each count of rape (Counts One to Four) the accused will serve four concurrent terms of ten years each.

The maximum penalty for indecent assault is five years, and for invasive assaults the tariff is from two to four years. For this indecent assault (Count 5) I sentence the accused to a term of three years, a term to be served concurrently with the rape sentences.

The total term of imprisonment is ten years, and he will serve a minimum of eight years".

[6] There is no principle in sentencing that the judge should use a mathematical formula to weigh the mitigating and aggravating factors. The upward and downward adjustment in sentence is done to reflect the aggravating and mitigating factors as a matter of practice so that the final sentence arrived at reflects the criminality involved. Of course if the judge adds or reduces the sentence using irrelevant factors, then the judge arguably commits an error. But the contention in this appeal is that the judge should have given separate numerical value to each mitigating factor before arriving at the final sentence. With respect, the contention is not an arguable error. The final sentence of 10 years' imprisonment for three counts of rape of a child is on the lower end of the tariff for rape.

[7] The ground of appeal is not arguable and the appeal against sentence cannot possibly succeed.

Result

[8] Leave refused.

[9] The appeal against sentence is frivolous and is dismissed under section 35(2) of the Court of Appeal Act.

...................................
Hon. Justice D. Goundar
JUSTICE OF APPEAL