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State v Vaileba [2015] FJCA 22; AAU0075.2011 (27 February 2015)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

Criminal Appeal No: AAU 0075 of 2011
(High Court Case No: HAC 020 of 2011)

BETWEEN:

THE STATE
Appellant

AND:

JOSEVA VAILEBA
Respondent

Coram : Calanchini P
Basnayake JA
Lecamwasam JA

Counsel : Mr. S. Babitu for the Appellant
Mr. S. Karavaki for the Respondent

Date of Hearing : 11 February 2015
Date of Judgment : 27 February 2015

JUDGMENT

Calanchini P
[1] I have read in draft the judgment of Basnayake JA and agree that this appeal should be dismissed. It must be stressed that the sentence imposed by the learned High Court Judge did not take account of aggravating factors that should have been considered. The Judge has erred in the exercise of his sentencing discretion. However by the time the appeal came on for hearing the respondent had been released under an early release programme sponsored by the Fiji Corrections Service. There is authority for the conclusion that it would not be in the interest of justice to require the respondent to serve a longer sentence in this case. (See: Deo -v- The State AAU 25 of 2005; 11 November 2005).

Basnayake JA

[2] This is an appeal by the appellant against the sentence that was imposed on the respondent by the learned High Court Judge on 25 July 2011. On 1 November 2013 a single Judge of the Court of Appeal granted leave to appeal in terms of section 21 (2) (c) of the Court of Appeal Act. An appellant is required to obtain leave of the Court of Appeal against sentence passed on conviction of any person unless the sentence is one fixed by law.

[3] The respondent was charged with rape contrary to section 207 (1) and (2) (a) of the Crimes Decree 2009. After trial the respondent was found guilty as charged by a majority of the Assessors. Having accepted the opinion of the Assessors the learned Judge convicted the respondent and imposed a sentence of four years without a term of parole.

[4] The appellant is now appealing against the sentence and has moved this court to set it aside and to impose an appropriate sentence according to law on the grounds:

1. That the learned trial Judge has erred in law by failing to consider the aggravating factors submitted by the prosecution.
   
2. The sentence imposed was inadequate and lenient.
   

[5] There is no cross appeal filed in this case against the conviction. Therefore the conviction was never an issue in this case. When this case was taken up for argument on 11 February, 2015, the respondent was present in court. The respondent brought to the notice of court that having served the sentence, he was released by the Corrections Service on 21 March 2014. The learned counsel for the respondent submitted that the respondent had been living a good life ever since and to consider the contribution that he has made to the society. As the respondent was released more than 10 months prior to the time of the arguments in court, the court considered that it is correct to call for a progress report on the respondent. Hence an order was made for the counsel of the respondent to submit same in writing within seven days. The learned counsel submitted a progress report to court in compliance with the request together with annexure to support it. The appellant responded in a short reply.

The Facts

[6] Although this appeal is only concerning the sentence and not the conviction the facts are still relevant. According to the evidence this incident occurred on 20 January 2011. The complainant in this case gave evidence in court on 18 July 2011. At the time of giving evidence she had two children. One child was two years old and the other child only one month and three weeks old. This clearly indicates that at the time of this incident she was at least 3 months' pregnant. This fact was never brought to light by either party.

[7] At the time of this incident the complainant was employed at a resort. The respondent too worked in the same resort. That is how the respondent got to know the complainant. The respondent claimed that the complainant is a relation. On 20 January, 2011 the complainant had been in her house with her daughter who would have been about one and half years old at the time. At about 10 pm. the respondent had visited the complainant and called on her to open the door which she had done. Having entered the house the respondent had wanted to stay the night saying that he has to go to work at 8 in the morning. The complainant had told the respondent that he cannot stay as there are no males in the house. The respondent, instead of leaving, had closed the door from inside and started to kiss her. She claimed that she resisted but in spite of her protests that the respondent held both her hands with one hand and removed his clothes and thereafter the complainant's and inserted his penis in to her vagina and had sex with her for about three minutes. She said that she shouted to which her daughter got up and started to cry. At that time she had been able to get herself released from the respondent. She further stated that she was able to push him out of the house and close the door. The respondent while being locked out had asked for forgiveness. She had then telephoned her father and within minutes made a complaint to the police. Thereafter she had been examined by a doctor.

[8] At the trial the respondent was unrepresented. While cross examining the complainant, the respondent suggested that he had had sexual intercourse with her previously which she denied. The respondent too gave evidence. In his evidence he admitted going to the victim's house after consuming liquor. He however denied that he had sexual intercourse. He said that he only inserted his finger and was playing with her and that the complainant asked him to stop. He denied to raping her.

The Issues

[9] The only question for determination in this case is with regard to the legality of the sentence. The conviction was never an issue. The appellant conceded that the learned Judge had correctly addressed his mind to the case of Kasim v State [1994] FJCA 25 and chosen seven years as the starting point. The Court of Appeal in Kasim v State (supra) having considered the guidelines laid down in Keith Billam & Others (1986) 8 Cr App R (S) 48 stated that "while it is undoubted that the gravity of rape cases will differ widely depending on all the circumstances, we think the time has come for this court to give clear guidance to the courts in Fiji generally on this matter. We consider that in any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment of seven years. It must be recognised 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 the 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" (Marawa v State [2006] FJCA 48, Timoci Momotu v State [1995] 41 FLR 50, Balelala v State [2004] FJCA 49, Asesela Drotini v State [2006] FJCA 26, Naidu v State [2007] FJCA 4).

[10] The learned Judge in this case considered that there were no aggravating features to be dealt with and having deducted 2 years for the respondent's past good record and a further 6 months each for the time spent in remand and for his family back-ground, imposed a sentence of 4 years. The learned Judge, considering the past good record of the respondent and acting under section 18 (2) of the Sentencing and Penalties Decree 2009, found it "inappropriate to fix a non-parole period on the term of imprisonment".

[11] The learned counsel for the appellant submitted that the learned Judge has failed to consider the following factors at the time of sentencing, namely;

1. The age of the victim being 26 years,
   
2. She was a single mother with a two year old girl (or 1 ½ years) and was at home alone,
   
3. The respondent took advantage of the victim and her vulnerability and he forced himself sexually on her and showed disrespect and total disregard for her personal dignity,
   
4. The respondent failed to consider the victim's safety and general welfare.
   

[12] As the respondent did not challenge the conviction he cannot now dispute the facts. The learned Judge himself appears to have relied on the manner of committing the act of crime in sentencing the respondent. Having done so, I am of the view that the learned Judge erred by not considering the above facts as amounting to aggravating factors.

Is it possible for the court to enhance the sentence now?

[13] The learned counsel for the respondent in his written submissions mentioned the following rehabilitation programs attended by the respondent while in prison, with regard to the progress of the respondent.

1. "Purpose of life workshop" conducted at Suva Corrections Centre from 19 January to 1 March 2012. Annexure "E".
   
2. "Encounter Program" from 17 September 2012 to 5 October 2012. Annexure "B".
   
3. "Virtues Program" from 19 March to 22 March 2013. Annexure "C".
   

The learned counsel submitted that the respondent was released through the "Yellow Ribbon Program" on 21 March 2014 with the main purpose of integrating the respondent back to his village community at Nadroumai village, Tuva, Nadroga. This was confirmed by letter dated 16 February 2015 by the Principal Corrections Officer (Annexure "D"). The Fiji Corrections Service confirmed that they assisted the respondent in his piggery project through the poverty alleviation programme and confirmed his satisfaction with regard to the progress made.

[14] There appears to be no report on the impact of the offence on the complainant and the injury, loss or damage resulting from the offence (Section 4 (2) (e) of the Sentencing and Penalties Decree 2009). However the learned counsel submitted in the written submissions that the complainant is now married. The above facts are not refuted by the appellant. The appellant in a short reply expressed his fear that the High Courts may use the judgment of this case as precedent to ignore similar facts as constituting aggravating facts. I am of the view that the learned Judge erred when he stated that there are no aggravating factors and that all four matters mentioned in paragraph 11 above should have been considered as facts that would aggravate the crime.

[15] In Naiveli v State [1994] FJCA29;AAU 0004u.92s (12 August 1994), Naiveli was found guilty of breach of section 111 of the Penal Code Cap 17 and was sentenced to nine months imprisonment suspended for 1 year and a fine of $ 1000. In an appeal by the State against the sentence, the Court of Appeal declined to lift the suspension requiring the appellant to serve an immediate term of imprisonment as it would be a very severe extra penalty when the period of suspension has long since expired. Hence the Court of Appeal dismissed the appeal by the State. A similar approach was taken by this court in Deo v The State [2005] FJCA 62; AAU 25 of 2005 (11 November 2005).

[16] The respondent had already served 2 years and 8 months in prison and had been released more than 11 months ago. He has already been integrated in to the society. He has a wife and two children. The complainant too is married. Considering the above facts I am of the view that justice would not be served by enhancing the sentence. Therefore the appeal of the appellant should be dismissed.

Lecamwasam JA
[17] I agree that for the reasons given by Basnayake JA the appeal should be dismissed.

The Order of the Court
The appeal is dismissed.

Hon. Justice W. Calanchini
PRESIDENT, COURT OF APPEAL

Hon. Justice E. Basnayake
JUSTICE OF APPEAL

Hon. Justice S. Lecamwasam
JUSTICE OF APPEAL