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Sacere v State [2021] FJCA 258; AAU070.2020 (31 December 2021)

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

CRIMINAL APPEAL NO.AAU 070 of 2020

[In the High Court at Lautoka Case No. HAC 107 of 2016]

BETWEEN:
SEMESA SACERE

Appellant

AND:
STATE

Respondent

Coram: Prematilaka, ARJA

Counsel: Mr. M. Fesaitu for the Appellant

: Ms. R. Uce for the Respondent

Date of Hearing: 30 December 2021

Date of Ruling: 31 December 2021

RULING

[1] The appellant had been indicted in the High Court at Lautoka on one representative count of rape contrary to section 207 (1) and (2) (a) of the Crimes Act, 2009 committed between 01 January 2012 and 31 December 2012 and one count of indecent assault contrary to section 212 (1) of the Crimes Act No. 44 of 2009 on 08 March 2015 at Sigatoka in the Western Division.

[2] The information read as follows:

‘COUNT ONE

REPRESENTATIVE COUNT

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Act No. 44 of 2009.

Particulars of Offence

SEMESA SACERE, between the 1^st day of January, 2012 and 31^st day of December, 2012 at Sigatoka in the Western Division, penetrated the vagina of “MN” with his penis without her consent.

COUNT TWO

Statement of Offence

INDECENT ASSAULT: Contrary to section 212 (1) of the Crimes Act No. 44 of 2009.

Particulars of Offence

SEMESA SACERE, on the 8^th of March, 2015 at Sigatoka in the Western Division, unlawfully and indecently assaulted “MN” by kissing her stomach.’

[3] At the end of the summing-up, the assessors had opined that the appellant was guilty of the first count but not guilty of the second count. The learned trial judge had agreed with the assessors’ opinion, convicted the appellant and sentenced him on 22 August 2019 to a sentence of 14 years and 08 months of imprisonment (after the remand period was deducted) with a non-parole period of 11 years.

[4] The appellant had appealed against conviction and sentence in person belatedly (13 August 2020). The Legal Aid Commission had then filed an application for enlargement of time to appeal against conviction and sentence, an affidavit and written submissions on 09 November 2021. The state had tendered its written submissions on 03 December 2021.

[5] Presently, guidance for the determination of an application for extension of time within which an application for leave to appeal may be filed is given in the decisions in Rasaku v State CAV0009, 0013 of 2009: 24 April 2013 [2013] FJSC 4 and Kumar v State; Sinu v State CAV0001 of 2009: 21 August 2012 [2012] FJSC 17. Thus, the factors to be considered in the matter of enlargement of time are (i) the reason for the failure to file within time (ii) the length of the delay
(iii) whether there is a ground of merit justifying the appellate court's consideration
(iv) where there has been substantial delay, nonetheless is there a ground of appeal

that will probably succeed? (v) if time is enlarged, will the respondent be unfairly prejudiced?

[6] Generally, where the delay is minimal or there is a compelling explanation for a delay, it may be appropriate to subject the prospects in the appeal to rather less scrutiny than would be appropriate in cases of inordinate delay or delay that has not been entirely satisfactorily explained [vide Lim Hong Kheng v Public Prosecutor [2006] SGHC 100)].

[7] The delay of the appeal (about 10 months and 03 weeks) is very substantial. The appellant had stated in his affidavit that he lacked knowledge on drafting appeal grounds and was not aware that he could appeal the decision of the High Court. He had been defended by a lawyer at the trial. The sentence order had clearly stated that he could appeal within 30 days. He had not explained how he managed to tender the appeal out of time if he was totally ignorant of the right to appeal. Thus, there is no acceptable explanation for the delay. Nevertheless, I would now see whether there is a real prospect of success for the belated grounds of appeal against conviction and sentence in terms of merits [vide Nasila v State [2019] FJCA 84; AAU0004.2011 (6 June 2019]. The respondent has not averred any prejudice that would be caused by an enlargement of time.

[8] 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 timely preferred against sentence 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.

[9] The grounds of appeal urged on behalf of the appellant against conviction and sentence are as follows:

Conviction:

Ground 1

THAT the Learned Trial Judge erred in fact and in law when he did not independently assess all the evidence adduced during trial and in not doing so resulted in the conviction being unsafe and further causing a grave miscarriage of justice.

Sentence

Ground 2

THAT the sentence imposed on the appellant is harsh and excessive.

[10] The trial judge had summarized the prosecution evidence in the sentence order as follows:

2. ‘The brief facts were as follows:

On 3^rd May, 2012 the victim who was 16 years of age was alone at her grandparents home when the accused came and asked for the whereabouts of her grandparents.

3. The victim told the accused that her grandparents were not at home. Upon hearing this, the accused told the victim to remove her clothes since he wanted to touch her body so he told her to lie down and then started touching and kissing her. After a while the accused went over the victim and forcefully penetrated her vagina with his penis. The victim told the accused not to do this to her since it was painful but the accused did not listen to her he continued having forceful sexual intercourse with the victim.
   
4. The accused had forceful sexual intercourse with the victim on three occasions without her consent. On each occasion the accused threatened the victim not to tell anyone as a result she did not tell anyone, however, in the year 2015 the victim’s mother came to live with her, she then told her mother about what the accused had done to her. The accused is the maternal grandfather of the victim by virtue of being the brother of the victim’s maternal grandfather. The matter was reported to the police by the victim’s mother.
   

[11] The appellant remained silent and called no witnesses on his behalf. His position put forward in cross-examination had been given as follows in the summing-up.

82. From the line of cross examination the defence takes the position that the accused did not commit the offences as alleged by the complainant. The defence is saying that the accused and the complainant were in a sexual relationship that is the reason why the complainant did not tell anyone until 2015 when the complainant’s mother questioned the complainant about her relationship with the accused.
    
83. The complainant had consented to have sexual intercourse with the accused on all the occasions. In respect of the second count of indecent assault the defence says this incident did not happen since the complainant did not say the accused had done anything to her in 2015. The defence further submits the mother of the complainant should not be believed since her evidence was inconsistent with her police statement which she had given to the police when the facts were fresh in her mind.
    

01^st ground of appeal

[12] The gist of the 01^st ground of appeal is that the trial judge had not independently assessed all the evidence and not substantially considered the defense case.

[13] What could be identified as common ground arising from several past judicial pronouncements is that when the trial judge agrees with the majority of assessors, the law does not require the judge to spell out his reasons for agreeing with the assessors in his judgment but it is advisable for the trial judge to always follow the sound and best practice of briefly setting out evidence and reasons for his agreement with the assessors in a concise judgment as it would be of great assistance to the appellate courts to understand that the trial judge had given his mind to the fact that the verdict of court was supported by the evidence and was not perverse so that the trial judge’s agreement with the assessors’ opinion is not viewed as a mere rubber stamp of the latter [vide Mohammed v State [2014] FJSC 2; CAV02.2013 (27 February 2014), Kaiyum v State [2014] FJCA 35; AAU0071.2012 (14 March 2014), Chandra v State [2015] FJSC 32; CAV21.2015 (10 December 2015) and Kumar v State [2018] FJCA 136; AAU103.2016 (30 August 2018) and Fraser v State [2021] FJCA 185; AAU128.2014 (5 May 2021)].

[14] A trial judge is not expected to repeat everything he had stated in the summing-up in the judgment (even when he disagrees with the majority of assessors) as long as he had directed himself on the lines of his summing-up to the assessors. Then the summing-up becomes part and parcel of the judgment [vide Fraser v State [2021] FJCA 185; AAU128.2014 (5 May 2021)]. In Fiji, the assessors are not the sole judge of facts. The judge is the sole judge of fact in respect of guilt, and the assessors are there only to offer their opinions, based on their views of the facts and it is the judge who ultimately decides whether the accused is guilty or not [vide Rokonabete v State [2006] FJCA 85; AAU0048.2005S (22 March 2006), Noa Maya v. The State [2015] FJSC 30; CAV 009 of 2015 (23 October 2015] and Rokopeta v State [2016] FJSC 33; CAV0009, 0016, 0018, 0019.2016 (26 August 2016)].

[15] The trial judge had dealt with prosecution evidence and applicable legal principles from paragraphs 45-79 and the defense case from paragraphs 80-83 and 92-93. The trial judge had clearly put the appellant’s position taken up in cross-examination namely ‘consensual sex’ to the assessors. Therefore, the only real issue was that of consent. Thus, the trial judge had directed the assessors as follows:

‘98. It is up to you to decide whether you accept the version of the defence and it is sufficient to establish a reasonable doubt in the prosecution case.

99. If you accept the version of the defence you must find the accused not guilty. Even if you reject the version of the defence still the prosecution must prove this case beyond reasonable doubt. Remember, the burden to prove the accused’s guilt beyond reasonable doubt lies with the prosecution throughout the trial and it never shifts to the accused at any stage of the trial.’
    

[16] Having ventilated the complainant’s evidence and the appellant’s position of consensual sexual intercourse the trial judge had said in the judgment as follow:

20. I accept the evidence of the complainant as truthful and reliable. The complainant was able to narrate to court what the accused had done to her over a period of time. I also accept that the complainant was afraid of the accused due to his repeated threats. These threats stopped her from making any complaints to anyone.
    
21. I have no doubt in my mind that the complainant told the truth in court, her demeanour was consistent with her honesty. Furthermore, the complainant was able to withstand lengthy cross-examination and was not discredited she was forthright and not evasive.
    
22. The complainant was also honest in telling the court that the accused did not do anything to her in 2015 that is in respect of the count of indecent assault. This court also accepts that the complainant told her mother what the accused was doing to her.
    

[17] At the same time, the trial judge had not attached any credibility to the complainant’s mother’s evidence (see paragraph 25 and 26 of the judgment) on the act of indecent assault that allegedly happened in 2015 which apparently prompted the probing by her into any previous sexual encounters between the appellant and the complainant. The main reason for this appears to be that the complainant had been emphatic that such an incident did not take place in 2015 but she had admitted having disclosed previous acts of sexual intercourse to her mother.

[18] Though not taken up as a ground of appeal and part of the written submissions, the appellant’s counsel argued that there was an unwarranted delay in reporting the matter to the police and that is because the acts of sexual intercourse were consensual.

[19] This aspect has not escaped the trial judge’s attention in the summing-up.

65. ‘A late complaint does not necessarily signify a false complaint and on the other hand an immediate complaint does not necessarily demonstrate a true complaint. It is a matter for you to determine what weight you would give to the fact that the complainant had told her mother after about three years in March, 2015 after she was asked by her mother if the accused had done anything to her previously, and the complainant told her that the accused usually touched her breast and even had sexual intercourse with her.
    
67. ................... The prosecution says the complainant told her mother about what the accused had done to her she did not complain earlier because she was afraid of the accused who used to visit her house about 4 or 5 times in a week and was her grandfather’s cousin and also the accused had threatened her not to tell anyone and therefore she is more likely to be truthful.
    
68. On the other hand, the defence says the complainant did not tell anyone until she was questioned by her mother in March, 2015 that is about three years later since the complainant and the accused were having a sexual relationship. The complainant’s mother did not approve that she was seeing the accused and also her mother had approached the complainant and asked her about her relationship with the accused so the complainant should not be believed.
    
69. It is for you to decide whether the evidence of recent complaint helps you to reach a decision. The question of consistency or inconsistency in the complainant’s conduct goes to her credibility and reliability as a witness. This is a matter for you to decide whether you accept the complainant as reliable and credible. The real question is whether the complainant was consistent and credible in her conduct and in her explanation of it.
    

[20] The trial judge had considered this issue in the judgment too.

7. The complainant did not consent to the accused to penetrate her vagina. The accused had sexual intercourse with the complainant on three occasions in 2012. On all occasions the complainant had told the accused not to do it since it was painful but the accused did not listen. He kept forcing her, and he scared her by his words. The complainant did not consent to what the accused was doing to her on all three occasions.
   
8. According to the complainant if she did not have sexual intercourse with the accused, he may beat her, force her and not give her money, and also the complainant was frightened of the accused who would give her $3.00 or $4.00 after he had sexual intercourse with her.
   
9. The accused would tell her not to tell anyone about what he had done to her as a result she did not tell anyone. In the year 2015, the complainant told her mother about what the accused had done to her she also said in 2015 the accused did not do anything to her. Furthermore, the accused was a regular visitor to her home.
   
10. The reason why the complainant delayed informing her mother was because when she met the accused he kept on telling her not to tell anyone about what he had done to her.’
    

[21] Thus, the fact finders namely the assessors and trial judge had not considered the delay as affecting the complainant’s credibility. The mere lapse of time occurring after the injury and the time of the complaint is not the test of the admissibility of evidence. The rule requires that the complaint should be made within a reasonable time. The surrounding circumstances should be taken into consideration in determining what would be a reasonable time in any particular case. By applying the totality of circumstances test, what should be examined is whether the complaint was made at the first suitable opportunity within a reasonable time or whether there was an explanation for the delay (vide State v Serelevu [2018] FJCA 163; AAU141.2014 (4 October 2018) and Tuyford 186, N.W. 2d at 548). It does not appear that either the assessors or the trial judge had seen any reason to doubt the explanation for the delay.

[22] Therefore, I cannot see any real prospect of success in the submissions made under the first ground of appeal.

02^nd ground of appeal (sentence)

[23] The appellant’s complaint is that the sentence was harsh and excessive and the trial judge had not considered his mitigation and not given enough credit for him being a first offender.

[24] The trial judge had considered all factors urged in mitigation and correctly remarked that they were personal circumstances and would carry little mitigation value [vide Raj v State [2014] FJSC 12; CAV0003.2014 (20 August 2014)]. However, for the appellant’s previous record the trial judge had given a discount of 01 year. Quantum too can rarely be a ground for the intervention of the appellate court [see Raj v State (supra)].

[25] In Aitcheson v State [2018] FJSC 29; CAV0012.2018 (2 November 2018) sentencing tariff for juvenile rape was enhanced and fixed between 11 to 20 years.

‘[25] The tariff previously set in Raj v The State [2014] FJSC 12 CAV0003.2014 (20^th August 2014) should now be between 11-20 years imprisonment. Much will depend upon the aggravating and mitigating circumstances, considerations of remorse, early pleas, and finally time spent on remand awaiting trial for the final sentence outcome. The increased tariff represents the denunciation of the courts in the strongest terms.’

[26] Therefore, I do not think that there is a real prospect of success in the sentence appeal either.

Orders

1. Enlargement of time to appeal against conviction is refused.
2. Enlargement of time to appeal against sentence is refused.
   

Hon. Mr. Justice C. Prematilaka

ACTING RESIDENT JUSTICE OF APPEAL