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State v Navunivesi [2020] FJCA 265; AAU0105.2018 (21 October 2020)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CRIMINAL APPEAL NO.AAU 0105 of 2018

[High Court of Suva Criminal Case No. HAC 318 of 2015]

BETWEEN:

STATE

Appellant

AND:

AMINISITAI NAVUNIVESI

Respondent

Coram: Prematilaka, JA

Counsel: Mr. R. Kumar for the Appellant

Mr. M. Fesaitu for the Respondent

Date of Hearing: 20 October 2020

Date of Ruling : 21 October 2020

RULING

[1] The respondent had been charged in the High Court of Suva on six counts of rape contrary to section 207(1) and (2)(a), (b) and (3) of the Crimes Act No.44 of 2009, one count of indecently annoying any person contrary to section 213 (1) of the Crimes Act No.44 of 2009 and one count of sexual assault contrary to section 210(1) and (1)(a) of the Crimes Act No.44 of 2009 committed at Naiqarakoka Settlement, Tailevu in the Central Division. The particulars of the offences were:

FIRST COUNT

Representative Count
Statement of Offence

INDECENTLY ANNOYING ANY PERSON: Contrary to Section 213 (1) of the Crimes Act 2009.

Particulars of Offence

AMINISITAI NAVUNIVESI, between the 1^st day of January 2012 and the 31^st day of December 2012, at Naiqarakoka Settlement, Tailevu in the Central Division, with intent to insult the modesty of M.A., exposed his penis.

SECOND COUNT
Representative Count
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Act, 2009.

Particulars of Offence

AMINISITAI NAVUNIVESI, between the 1^st day of June 2015 to the 31^st of August 2015, at Naiqarakoka Settlement, Tailevu in the Central Division, had carnal knowledge of M.A., a child under the age of 13 years.

THIRD COUNT
Representative Count
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act, 2009.

Particulars of Offence

AMINISITAI NAVUNIVESI, between the 1^st day of June 2015 to the 31^st of August 2015, at Naiqarakoka Settlement, Tailevu in the Central Division, penetrated the vagina of M.A., a child under the age of 13 years, with his fingers.

FOURTH COUNT
Representative Count
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Act, 2009.

Particulars of Offence

AMINISITAI NAVUNIVESI, on an occasion other than that referred to in Count Two, between the 1^st day of June 2015 to the 31^st of August 2015, at Naiqarakoka Settlement, Tailevu in the Central Division, had carnal knowledge of M.A., a child under the age of 13 years.

FIFTH COUNT
Representative Count
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act, 2009.

Particulars of Offence

AMINISITAI NAVUNIVESI, on an occasion other than that referred to in Count Three, between the 1^st day of June 2015 to the 31^st of August 2015, at Naiqarakoka Settlement, Tailevu in the Central Division, penetrated the vagina of M.A., a child under the age of 13 years, with his fingers.

SIXTH COUNT

Representative Count
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act, 2009.

Particulars of Offence

AMINISITAI NAVUNIVESI, between the 1^st day of June 2015 to the 31^st of August 2015, at Naiqarakoka Settlement, Tailevu in the Central Division, penetrated the vagina of M.A., a child under the age of 13 years, with his tongue.

SEVENTH COUNT

Representative Count
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Act, 2009.

Particulars of Offence

AMINISITAI NAVUNIVESI, on an occasion other than that referred to in Count Two and Count Four, between the 1^st day of June 2015 to the 31^st of August 2015, at Naiqarakoka Settlement, Tailevu in the Central Division, had carnal knowledge of M.A., a child under the age of 13 years.

EIGHTH COUNT

Representative Count
Statement of Offence

SEXUAL ASSAULT: Contrary to Section 210 (1) and (1) (a) of the Crimes Act, 2009.

Particulars of Offence

AMINISITAI NAVUNIVESI between the 1^st day of June 2015 to the 31^st of August 2015, at Naiqarakoka Settlement, Tailevu in the Central Division, unlawfully and indecently assaulted M.A., by forcefully putting her hand on his penis.

[2] The respondent had pleaded guilty to the sixth count of rape and the trial had continued regarding all other counts. After the summing-up, on 21 September 2018 the assessors had expressed a unanimous opinion that the respondent was guilty of all remaining seven charges. The learned High Court judge in the judgment dated 25 September 2018 had agreed with the assessors on six of those charges i.e. 1-5 and 8 but disagreed with them on the seventh count and acquitted the respondent of count 7. The learned High Court judge on 05 October 2018 had imposed sentences of 15 years of imprisonment on all counts of rape except the sixth count where the sentence was 13 years of imprisonment. The first and the eighth counts received 10 months and 07 years of imprisonments respectively. All sentences were directed to run concurrently subject to a non-parole period of 11 years.

[3] A timely notice of appeal against sentence had been tendered by the appellant on 25 October 2018. The appellant’s written submissions had been filed on 25 June 2019. The Legal Aid Commission appearing for the respondent had tendered written submissions on 11 August 2020.

[4] The sentencing order reveals the following facts relating to the case against the appellant.

‘[7] The prosecution, in support of their case, called the complainant, MA, and her paternal grandmother, Ane Radovi. The prosecution also tendered the Birth Certificate of the complainant as Prosecution Exhibit PE1.

[8] You are the paternal grandfather of the complainant. The complainant was only was 8 years old at the time of the alleged incident in 2012 (Count 1), and 11 years old between 1 June 2015 and 31 August 2015 (Counts 2-8) (her date of birth being 8 December 2003), and as such, she was a juvenile.

[9] The complainant clearly testified in Court of what you had done to her in the year 2012, when she was in class 2. She also testified to the events which took place between 1 June 2015 and 31 August 2015.

[10] In terms of the Victim Impact Assessment Report filed in Court, it is recorded that the complainant has been emotionally and psychologically traumatized by your actions. She is nervous, scared, ashamed, has no self-confidence and her self-esteem is very low

[5] In terms of section 21(2) (c) of the Court of Appeal Act, the appellant could appeal against sentence only with leave of court. The test for leave to appeal is ‘reasonable prospect of success’ (see Caucau v State AAU0029 of 2016: 4 October 2018 [2018] FJCA 171, Navuki v State AAU0038 of 2016: 4 October 2018 [2018] FJCA 172 and State v Vakarau AAU0052 of 2017:4 October 2018 [2018] FJCA 173, Sadrugu v The State Criminal Appeal No. AAU 0057 of 2015: 06 June 2019 [2019] FJCA87 and Waqasaqa v State [2019] FJCA 144; AAU83.2015 (12 July 2019) in order to distinguish arguable grounds [see Chand v State [2008] FJCA 53; AAU0035 of 2007 (19 September 2008), Chaudry v State [2014] FJCA 106; AAU10 of 2014 and Naisua v State [2013] FJCA 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds.

[6] Further guidelines to be followed for leave to appeal when a sentence is challenged in appeal are well settled (vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013] FJSC 14; House v The King [1936] HCA 40; (1936) 55 CLR 499, Kim Nam Bae v The State Criminal Appeal No.AAU0015 and Chirk King Yam v The State Criminal Appeal No.AAU0095 of 2011). The test for leave to appeal is not whether the sentence is wrong in law but whether the grounds of appeal against sentence are arguable points under the four principles of Kim Nam Bae's case. For a ground of appeal filed within time to be considered arguable there must be a reasonable prospect of its success in appeal. The aforesaid guidelines are as follows.

(i) Acted upon a wrong principle;
(ii) Allowed extraneous or irrelevant matters to guide or affect him;
(iii) Mistook the facts;
(iv) Failed to take into account some relevant consideration.

[7] Grounds of appeal

‘a. That the learned trial judge erred in principle by imposing a cumulative sentence of 15 years imprisonment which does not reflect the totality of the Respondent’s culpability and the seriousness of the crimes as found by the learned judge in his sentencing order.

b. That the learned trial Judge erred in his sentencing discretion by allowing an unjustified substantial discount of 02 years for the guilty plea to count 6 despite the fact that it was not entered at the first available opportunity and despite the fact that the trial continued with respect to remaining counts thereby not relieving the victim from giving evidence in court.

c. That the learned Judge erred in principle in failing to give any or any sufficient consideration to deterrence and denunciation.’

[8] The appellant does not seem to have made submissions separately under each of the grounds urged and therefore, I would deal with all grounds of appeal and matters stated in the written submissions together.

[9] The appellant has referred to section 4 of the Sentencing and Penalties Act,2009 and cited Alfaaz v State [2018 FJSC 17; CAV0009 of 2018 (30 August 2018), Chand v State [2016] FJCA 65; AAU 0063 of 2012 (27 May 2016) to emphasis the seriousness and gravity of the offences the appellant had committed. The trial judge had not referred to these decisions but he had cited several other decisions which also had expressed equally strong sentiments on the seriousness and consequences of the offence of rape as follows.

‘[11] Section 4 of the Sentencing and Penalties Act No. 42 of 2009 (“Sentencing and Penalties Act”) stipulates the relevant factors that a Court should take into account during the sentencing process. I have duly considered these factors in determining the sentence to be imposed on you.

[12] The offence of Rape in terms of Section 207(1) of the Crimes Act No. 44 of 2009 (“Crimes Act”) carries a maximum penalty of imprisonment for life.

[13] The severity of the offence of Rape was highlighted by the Fiji Court of Appeal in the case of Mohammed Kasim v. The State [1994] FJCA 25; AAU 21 of 93 (27 May 1994); where it was stated:

“....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 the understandable public outrage.”

[14] In the case of State v. Marawa [2004] FJHC 338; HAC 16T of 2003S (23 April 2004); His Lordship Justice Anthony Gates stated:

“Parliament has prescribed the sentence of life imprisonment for rape. Rape is the most serious sexual offence. The Courts have reflected increasing public intolerance for this crime by hardening their hearts to offenders and meting out harsher sentences”.

“A long custodial sentence is inevitable. This is to mark the gravity of the offence as felt, and correctly so, by the community. Imprisonment emphasizes the public’s disapproval and serves as a warning to others who may hitherto regard such acts lightly. One must not ignore the validity of the imposition of condign punishment for serious crime. Lastly the sentence is set in order to protect women from such crimes: Roberts and Roberts (1982) 4 Cr. App R(S) 8; The State v Lasaro Turagabeci and Others (unreported) Suva High Court Crim. Case No. HAC0008.1996S.”

[15] In The State v Lasaro Turagabeci and Others (supra) Pain J had said:

“The Courts have made it clear that rapists will be dealt with severely. Rape is generally regarded as one of the gravest sexual offences. It violates and degrades a fellow human being. The physical and emotional consequences to the victim are likely to be severe. The Courts must protect women from such degradation and trauma. The increasing prevalence of such offending in the community calls for deterrent sentences.”

[16] His Lordship Justice Daniel Goundar, in the case of State v. AV [2009] FJHC 24; HAC 192 of 2008 (2 February 2009); observed:

“....Rape is the most serious form of sexual assault. In this case a child was raped. Society cannot condone any form of sexual assaults on children. Children are our future. The Courts have a positive obligation under the Constitution to protect the vulnerable from any form of violence or sexual abuse. Sexual offenders must be deterred from committing this kind of offences”.

[17] In the case of State v. Tauvoli [2011] FJHC 216; HAC 27 of 2011 (18 April 2011); His Lordship Justice Paul Madigan stated:

“Rape of children is a very serious offence indeed and it seems to be very prevalent in Fiji at the time. The legislation has dictated harsh penalties and the Courts are imposing those penalties in order to reflect society's abhorrence for such crimes. Our nation's children must be protected and they must be allowed to develop to sexual maturity unmolested. Psychologists tell us that the effect of sexual abuse on children in their later development is profound.”

[10] Thereafter, the trial judge had given his mind to the applicable range of sentences for the offences the appellant had been convicted of as follows.

‘[18] In the case of Anand Abhay Raj v. The State [2014] FJSC 12; CAV 03 of 2014 (20 August 2014); Chief Justice Anthony Gates (with Justice Sathyaa Hettige and Madam Justice Chandra Ekanayake agreeing) endorsed the view that Rapes of juveniles (under the age of 18 years) must attract a sentence of at least 10 years and the acceptable range of sentences or sentencing tariff is between 10 and 16 years imprisonment.

[19] In determining the starting point within the said tariff, the Court of Appeal, in Laisiasa Koroivuki v. State [2013] FJCA 15; AAU 0018 of 2010 (5 March 2013); has formulated the following guiding principles:

“In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range.”

[20] In the light of the above guiding principles, and taking into consideration the objective seriousness of the offence, I commence your sentence at 10 years imprisonment for the second count of Rape.

[11] Thus, the trial judge had picked the starting point at the lower end of the range of 10 years. Thereafter, he had enhanced the sentence by 05 years on account of aggravating factors set out as follows.

‘[21] The aggravating factors are as follows:

(i) You are the paternal grandfather of the complainant. Being her grandfather, you should have protected her. Instead you have breached the trust expected from you and the breach was gross

(ii) There was a large disparity in age between you and the complainant. The complainant was merely 8 years of age at the time you first committed these offences on her. At the time you were 61 years of age. Therefore, there was a difference in age of 53 years.

(iii) You took advantage of the complainant’s vulnerability, helplessness and naivety.

(iv) You have exposed the innocent mind of a child to sexual activity at such a tender age.

(v) The impact of the crime on the victim has been traumatic and is continuing.

(vi) There is evidence to indicate that some of these abuses were pre planned by you.

(vii) The acts committed by you had caused the complainant physical pain.

(viii) You are now convicted of multiple offending. You have abused and raped the complainant over a long period of time. As pointed out by the State, the complainant was subjected to a campaign of rape.

[12] The Supreme Court said in Kumar v State [2018] FJSC 30; CAV0017.2018 (2 November 2018) that 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.

[13] Though the aggravating factors seem to relate both to the offending and the offender there is nothing objectionable in the methodology adopted by the trial judge and the resulting final sentence which is almost at the high end of the sentencing tariff.

[14] The trial judge in paragraph 22 of the sentencing order had correctly answered the question in line with Rokoloba v State [2018] FJSC 12; CAV0011 of 2017 (26 April 2018) whether there were any mitigating factors and further due to the appellant’s previous convictions the judge had not considered him as a person of previous good character (vide paragraph 26). However, I wish to add that even without previous convictions, the appellant could not have been considered as a first offender or as a person of previous good character in the light of the facts of this case which the trial judge had termed as a campaign of rape. In a slightly different context the Supreme Court held that when the appellant is entrusted with a position of responsibility because of his good character, being a first offender would not be a significant mitigation (see Senilolokula v State [2018] FJSC 5; CAV0017 of 2017 (26 April 2018). The trial judge had said:

‘[22] You are now 67 years of age, and residing at Nadali Village in Nausori. You are said to be a cane cutter earning $200 per fortnight. However, these are all personal circumstances and cannot be considered as mitigating circumstances.’

‘[26] Therefore, this Court cannot consider you as a person of previous good character and as such I am not in a position to offer you any concession in this regard.’

[15] The trial judge had given careful consideration to the advanced age of the appellant in paragraph 43-50 and refused to offer any concession in that regard in the matter of sentence given the facts of the case and for want of guilty plea to the information. He had considered the appellant’s age only in fixing the non-parole period. The judge had stated in paragraph 50 as follows.

‘[50] Considering all the facts and circumstances of this case, especially the fact that the victim herself was merely 8 years of age at the time you began to abuse her and also since you are her grandfather, I am not inclined to reduce the primary sentence or head sentence I am imposing on you.’

[16] The appellant argues that the trial judge had erred in allowing a discount of 02 years for the guilty plea in respect of count 6. I agree with the appellant. The appellant’s plea to the sixth count did not relieve the victim of the trauma of recalling the details of grisly acts of rape over a long period of time and therefore, the appellant did not deserve the discount of 02 years for his guilty plea. As a matter of fact and law in a situation such as this an accused does not deserve any credit at all for a guilty plea only for one or more of the counts as long as a full trial has to be conducted. However, in the broader context of the total sentencing where the trial judge had imposed 15 years of imprisonment on all other counts of rape, the 13 year sentence on count 6 becomes rather insignificant.

[17] It is the ultimate sentence that is of importance, rather than each step in the reasoning process leading to it. When a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step in the reasoning process that must be considered (vide Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006). In determining whether the sentencing discretion has miscarried the appellate courts do not rely upon the same methodology used by the sentencing judge. The approach taken by them is to assess whether in all the circumstances of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies within the permissible range (Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015).

[18] Thus, there is no sentencing error that merits the intervention of the full court in the ultimate sentence of 15 years of imprisonment. Neither is there a reasonable prospect of success in the appellant’s appeal against the sentence. The full court exercising its power to revisit the sentence including its adequacy under section 23(3) of the Court of Appeal Act is almost non-existent in this case.

[19] As pointed out by the respondent, in any event the quantum of sentence would rarely be considered a ground for intervention by the appellate courts [vide Raj v State [2014] FJSC 12, CAV003 of 2014 (20 August 2014)]. Nor would the appellate court intervene unless it considers the sentence to be so manifestly lenient that it should interfere although the facts of the case may merit a sentence higher than what the trial court has imposed [vide Drotini v The State [2006] FJCA 26; AAU0001.2005S (24 March 2006)].

[20] Though not directly relevant to the main theme of the appeal, I may also highlight a few other aspects of sentencing for guidance of the trial judges and Magistrates in the light of concerns expressed by the Supreme Court in the recent part. Some judges following Koroivuki v State [2013] FJCA 15; AAU0018 of 2010 (05 March 2013) pick the starting point from the lower or middle range of the tariff whereas other judges start with the lower end of the sentencing range as the starting point.

[21] In Senilolokula v State [2018] FJSC 5; CAV0017.2017 (26 April 2018) the Supreme Court has raised a few concerns regarding selecting the ‘starting point’ in the two-tiered approach to sentencing in the face of criticisms of ‘double counting’ and question the appropriateness in identifying the exact amount by which the sentence is increased for each of the aggravating factors stating that it is too mechanistic an approach. Sentencing is an art, not a science, and doing it in that way the judge risks losing sight of the wood for the trees.’

[22] I have already quoted the observations of the Supreme Court in Kumar v State [2018] FJSC 30; CAV0017.2018 (2 November 2018). This concern on double counting was echoed once again by the Supreme Court in Nadan v State [2019] FJSC 29; CAV0007.2019 (31 October 2019) and stated that the difficulty is that the appellate courts do not know whether all or any of the aggravating factors had already been taken into account when the trial judge selected as his starting point a term towards the middle of the tariff. If the judge did, he would have fallen into the trap of double-counting.

[23] The methodology commonly followed by judges in Fiji is the two-tiered process expressed in the decision in Naikelekelevesi v State [2008] FJCA 11; AAU0061.2007 (27 June 2008) which was further elaborated in Qurai v State [2015] FJSC 15; CAV24.2014 (20 August 2015). It operates as follows:

(i) The sentencing judge first articulates a starting point based on guideline appellate judgments, the aggravating features and seriousness of the offence i.e. objective circumstances and factors going to the gravity of the offence itself [not the offender]; the seriousness of the penalty as set out in the relevant statute and relevant community considerations (tier one). Thus, in determining the starting point for a sentence the sentencing court must consider the nature and characteristic of the criminal enterprise that has been proven before it following a trial or after the guilty plea was entered. In doing this the court is taking cognizance of the aggravating features of the offence.

(ii) Then the judge applies the aggravating features of the offender i.e. all the subjective circumstances of the offender which will increase the starting point, then balancing the mitigating factors which will decrease the sentence, (i.e. a bundle of aggravating and mitigating factors relating to the offender) leading to a sentence end point (tier two).

[24] However, in applying the two-tiered approach the judges should endeavor to avoid the error of double counting as highlighted by the Supreme Court. The best way obviously to do that is to follow the two-tiered approach diligently as stated above. In this regard, it is always helpful for the sentencing judges to indicate what aggravating factors had been considered in picking the starting point in the middle of the tariff and then to highlight other aggravating factors used to enhance the sentence. If the starting point is taken at the lower end without taking into account any aggravating features, then all aggravating factors can be considered to increase the sentence.
[25] The observations of the Supreme Court in Qurai v State [2015] FJSC 15; CAV24.2014 (20 August 2015) are very instructive in this regard.

‘[48] The Sentencing and Penalties Decree does not provide any specific guideline as to what methodology should be adopted by the sentencing court in computing the sentence, and subject to the current sentencing practice and terms of any applicable guideline judgment, leaves the sentencing judge with a degree of flexibility as to the sentencing methodology, which might often depend on the complexity or otherwise of every case.

[49] In Fiji, the courts by and large adopt a two-tiered process of reasoning where the sentencing judge or magistrate first considers the objective circumstances of the offence (factors going to the gravity of the crime itself) in order to gauge an appreciation of the seriousness of the offence (tier one), and then considers all the subjective circumstances of the offender (often a bundle of aggravating and mitigating factors relating to the offender rather than the offence) (tier two), before deriving the sentence to be imposed. This is the methodology adopted by the High Court in this case.

[50] It is significant to note that the Sentencing and Penalties Decree does not seek to tie down a sentencing judge to the two-tiered process of reasoning described above and leaves it open for a sentencing judge to adopt a different approach, such as "instinctive synthesis", by which is meant a more intuitive process of reasoning for computing a sentence which only requires the enunciation of all factors properly taken into account and the proper conclusion to be drawn from the weighing and balancing of those factors.

[51] In my considered view, it is precisely because of the complexity of the sentencing process and the variability of the circumstances of each case that judges are given by the Sentencing and Penalties Decree a broad discretion to determine sentence. In most instances there is no single correct penalty but a range within which a sentence may be regarded as appropriate, hence mathematical precision is not insisted upon. But this does not mean that proportionality, a mathematical concept, has no role to play in determining an appropriate sentence. The two-tiered and instinctive synthesis approaches both require the making of value judgments, assessments, comparisons (treating like cases alike and unlike cases differently) and the final balancing of a diverse range of considerations that are integral to the sentencing process. The two-tiered process, when properly adopted, has the advantage of providing consistency of approach in sentencing and promoting and enhancing judicial accountability, although some cases may not be amenable to a sequential form of reasoning than others, and some judges may find the two-tiered sentencing methodology more useful than other judges.

Order

1. Leave to appeal against sentence is refused.

Hon. Mr. Justice C. Prematilaka

JUSTICE OF APPEAL