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Sharma v State [1997] FJHC 70; HAA0027D.1997S (11 June 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.0027 OF 1997

Between:

LATCHMAN PRASAD SHARMA
Appellant

And:

THE STATE
Respondent

Counsel: Appellant in person
Ms A. Driu and Mr. N. Bhindi for Respondent

Hearing: 10th June 1997

Decision: 11th June 1997

ORAL DECISION OF PAIN J

This is an appeal against conviction and sentence on a charge of attempted rape. After a defended hearing the Appellant was convicted and sentenced to 4 years imprisonment.

In his petition of appeal the Appellant specified three grounds in respect of the appeal against conviction.

The first ground of appeal states:

1. "PW1 had stated on oath that 'I raped her and penetrated my penis into her vagina'". But this indeed in contradiction with the charges attempted rape."

It is correct that the complainant did say in evidence that "he raped me, he inserted his penis into my private part". However she then qualified this by saying "The accused tried to penetrate my vagina but the accused said my vagina was too small. Accused tried to penetrate my vagina but he could not because my vagina was too small". In cross-examination she was asked the question "Did I rape you". She replied "Yes he raped me. He tried to get into my vagina, he did not get in, he was around the opening". The next question was "How much did I penetrate into your vagina". Her answer "He did not enter me, he was just around the opening".

It must be remembered that the complainant was only 12 years old at the time of the incident. This evidence which was accepted by the learned Magistrate is totally compatible with the charge of attempted rape.

The second ground of appeal states:

2. "There was no evidence to indicate any attempted penetration apart from the verballing of PW1 whose evidence required corroboration in law".

It is true that the only evidence of attempted penetration comes from the complainant and it is dangerous to convict on her evidence alone unless it is corroborated.

However, the learned Magistrate correctly addressed these issues. He reminded himself of the need for corroboration and after a careful consideration of the evidence he accepted the complainant's testimony as being the truth. He gave reasons for this.

The learned Magistrate also rejected the Appellant's evidence that the allegation made against him by the complainant was false.

Although the complainant's evidence was not corroborated on all essential elements there was other evidence that supported her story and showed the consistency of her conduct. For instance, the complainant's sister PW2 confirmed that the accused took the complainant out of the car and was alone with her for a short while. Further there is clear evidence that the complainant was crying after that and immediately made a complaint to her mother when she was taken home. The explanation given by the Appellant in his caution statement is quite inconsistent with the events related by the complainant, her sister and both her parents. The medical examination of the complainant revealed no injury but the doctor did report that she "complained of pain on gentle swab taking around vulva area".

In all the circumstances the learned Magistrate was fully justified in accepting the evidence of the complainant and rejecting the denial of the Appellant. Having warned himself of the need for corroboration, he found that the complainant's evidence, together with the other testimony proved the charge beyond reasonable doubt. Having carefully read the evidence and reasons given by the learned Magistrate, I am quite satisfied that he was fully entitled to come to that conclusion.

This ground of appeal states:

3. "PW2 said that she heard PW1 crying at the scene. But this does not go together with PW1 who said that she was not crying".

The evidence given by the complainant was that when the accused attempted to rape her she just stayed quiet because she was too scared to say anything. Her sister PW2 said "I heard my sister screaming when the accused took her away". In cross-examination she said "I could hear my sister yelling".

Certainly the complainant did not give evidence that she was screaming when the accused took her away. However, in his decision the learned Magistrate noted this. He said that he treated this aspect of PW2's evidence with caution but PW2's evidence did confirm that the accused took the complainant away from the car.

The learned Magistrate correctly dealt with the evidence of PW2. This difference in the evidence given by the complainant and her sister does not affect the proof of the case by the prosecution.

The Appellant raised some further matters in the oral submissions he made in Court.

He submitted that the incident described by the prosecution witnesses did not occur. He said that his version of events as outlined in his caution statement is correct. He also submitted at length that the complainant's parents had deliberately made this false complaint against him and told their daughters what to say. From the record of proceedings in the Magistrates Court there is nothing to substantiate such an allegation. It was denied by the prosecution witnesses that they had concocted a false allegation against the Appellant. The learned Magistrate accepted the complainant and her sister as truthful witnesses. They would not have behaved as they did at the time or given such evidence in Court if nothing whatever had occurred between the complainant and the Appellant. It is clear that the allegation against the Appellant originated from the complainant and not from her parents. There is no credit or substance in the Appellant's submission that the whole family conspired to make a false allegation against him and give untruthful evidence in Court.

The Appellant referred to the complainant's statement to the doctor as contained in the medical report and submitted that it contained matters that the complainant did not give in evidence. That is understandable as the statement to the doctor was made on the night of the incident when the details would have been fresh in her memory and the evidence was not given until 18 months later. However that was favourable to the accused as the complainant's statement to the doctor was even more damning than the evidence she gave in Court. The learned Magistrate gave his decision on the basis of her sworn evidence and not on the statement recorded in the medical report.

The Appellant also submitted that he had a lawyer Mr. Semisi who withdrew from the case when he was appointed to the Bench. He said that the learned Magistrate did not give him an opportunity to obtain another lawyer. There is no reference to this in the record. According to the record Mr. Semisi last appeared for the Appellant at a hearing on 9th November 1995. There were 3 further hearings at which the Appellant appeared before the case was finally heard. One of those hearings was a fixture on 8th July 1996 for the hearing of the case. The Appellant and the witnesses were present but the Court was unable to hear the case on that day and it was adjourned for a further 2 months to 9th September 1996. The Appellant had ample time to arrange for another counsel if he desired to do so and had the means to pay.

At the hearing the Appellant's exculpatory statement was before the Court. His defence was a categorical denial of the allegations against him. He was given every opportunity to present this defence which was considered by the learned Magistrate in his judgment. There was no miscarriage of justice and the absence of a counsel in this case does not render the conviction unsafe or unsatisfactory.

The Appellant pleaded for a retrial with bail to be granted in the meantime. However, he has had his trial. A defendant does not get a second opportunity because his defence was rejected and he is dissatisfied with the result.

I have carefully considered all the grounds advanced by the Appellant. There is no substance in any of them. The learned Magistrate heard all the evidence. He correctly directed himself on the law, particularly regarding the requirement for corroboration. He accepted the evidence of the complainant and other prosecution witnesses. He rejected the evidence and explanation of the Appellant. The complainants evidence was not corroborated in every material particular. However, the learned Magistrate, having warned himself of the danger, accepted it as true and convicted the Appellant. He was entitled to do that. On that basis there was ample evidence to convict the Appellant on the charge of attempted rape. There is no ground for this Court to interfere with that decision.

I turn now to the appeal against the sentence of 4 years imprisonment.
The maximum sentence for this offence is 7 years imprisonment. The attitude of the Courts and the community to sexual assaults upon women and children is well known. Such offending is abhorrent. Salutary, deterrent and condign sentences are imposed.

Substantial prison sentences are common for this offence. Sentences of 3½ years imprisonment have been confirmed in this Court in Epeli Ratabacaca v The State (Crim. App. No.106 of 1991) and Watisoni Davui v The State (Crim. App. No.10 of 1997).

In this case there are some aggravating features. The complainant was only 12 years of age. Her immaturity is shown by the fact that the Appellant tried to penetrate her vagina and was unable to do so because it was too small. He performed other degrading acts upon her. It was obviously a traumatic experience for this young girl.

There was some breach of trust involved. The Appellant was a family friend and the complainant said that she called him "uncle". In his submissions the Appellant said that the complainant's father was his best friend and he looked on the complainant and her sisters like his own children.

Finally, there was some subterfuge employed by the Appellant. He asked if he could take the complainant and her sister to look after his sick wife. His wife was not sick and he returned the children to their home immediately after the attempted rape.

Furthermore, the Applicant is not entitled to any reduction in the appropriate sentence that should be imposed for this serious offending. He continues to deny the offending and has expressed no remorse. The complainant was subjected to the ordeal of a defended hearing. Moreover the Appellant is not entitled to any discount because of good character. He has shown a propensity to commit indecent offences. Convictions in 1981 and 1985 for attempted rape and indecent assault have rather lost their significance with the effluxion of time. However, the Appellant was again convicted of indecent assault in 1990 and sentenced to 12 months imprisonment.

The Appellant expressed concern for the plight of his wife and children who need his help and support. The Court has sympathy for this. However, it is a common consequence when offenders are sentenced to imprisonment. It is not, in the circumstances of this case, a matter that warrants a reduction of sentence.

Having regard to the nature of this offence and the aggravating factors I have mentioned a sentence of 4 years imprisonment is appropriate and within the acceptable range. There is no ground for this Court to reduce it.

There is a final matter to be considered in relation to the sentence imposed in this case. That is the order of the learned Magistrate that the term of 4 years imprisonment imposed upon the Appellant be served "consecutive to his present prison term".

Upon conviction of the Appellant on 10th September 1996 a list of previous convictions was tendered to the learned Magistrate. This was dated the 6th May 1995 and showed the last conviction as having been imposed on the 21st June 1990 when the Appellant was sentenced to 12 months imprisonment. That sentence would have been completed in 1991.

The production of this outdated list of convictions by the Police is totally unsatisfactory. It was 16 months out of date and the Appellant had been further convicted and sentenced during that period. It is clear from the submissions of counsel for the respondent and my own experience that this is a common occurrence. In Salesh Nath v The State (Crim. App. No. 34 of 1995) I encountered a situation where the conviction list produced by the Police was 3 years out of date and further offending during that period was not brought to the attention of the presiding Magistrate. In that case I said that "for the purposes of sentencing a Prosecutor must always obtain an up-to-date list of previous convictions of the person to be sentenced". I again repeat that this is imperative. It is not being done. I ask the respondent to bring this to the attention of the appropriate Police Authority.

The presiding Magistrate should also insist that an up-to-date list of previous convictions is produced. Proper sentencing, particularly in regard to suspended sentences and the choice between consecutive and cumulative sentences, cannot be done without such a list.

In this case it would have been apparent during the hearing that Appellant was in custody. In his submissions the Appellant said "I'm in prison. I'm due for release on 7/12/95". This date of 7/12/95 is recorded by learned Magistrate in both the typed record and his hand written notes. That is not correct as it was then the 10th September 1996. As the Appellant was then serving a prison sentence it should have been apparent that the conviction list was not up to date. Without enquiring the length of sentence the Appellant was serving or the nature of the offence for which it was imposed, the learned Magistrate ordered the new sentence of 4 years imprisonment to be served consecutively to it. Without the appropriate information and consideration that is wrong in principle.

Ordinarily, a further sentence of imprisonment will be imposed consecutively to an existing term, but there is a correct procedure to be followed. This can be found in the decision of the Court of Criminal Appeal in England in R v Millen (1980) 2 Cr App R(S) 357. The Court considered a submission that in these circumstances (p.359):

"The second judge passing sentence, having decided what is the appropriate sentence for the particular offence or offences before him, should then look at the sentences which the accused man is presently serving and should decide having regard to the total criminality displayed by the accused, what is the appropriate sentence".

The Court said (at page 360):

"In general terms this Court accepts that submission. We think the learned judge failed to have regard to the principle of totality. He should have looked at the total period which this man was to serve for the various offences of which he had previously been convicted, as well as, the matters with which the learned judge was currently dealing on July 20th".

In that case the Court of Appeal reduced the overall consecutive terms of imprisonment that had been imposed from 10 years to 7 years.

In the present case the learned Magistrate did not follow the correct procedure. He imposed a consecutive sentence without having any knowledge of what it was consecutive to and whether the total consecutive term was appropriate for all the offences.

I endeavoured to consider and resolve this issue myself. However, the Appellant did not accept a further conviction list shown to him by counsel for the Respondent. In particular he said that a sentence of 2½ years imprisonment was imposed on 18th March 1996 but this was reduced on appeal to 9 months. He said that occurred just before the hearing and sentence on this present charge of attempted rape. If that is correct then the earlier sentence may well have expired before his sentence on the charge of attempted rape. In these circumstances, as the further conviction list is not accepted by the Appellant, it would not be proper for me to receive it and act upon it.

I could remit the file back to the Magistrates Court for proper inquiry. However, the Appellant is entitled to have the appeal disposed of on the present information before the Court if this can be done. He should not suffer unduly because of errors that were not of his making.

The imposition of a consecutive sentence, without any consideration of the earlier charge and sentence, was wrong in principle. There was insufficient information before Magistrates Court and there is still insufficient information before this Court to justify the imposition of a consecutive sentence. In the circumstances the only proper course for this Court is to quash the order that the 4 years sentence be consecutive and order that it be served concurrently.

Accordingly, I order as follows:

1. The appeal against conviction is dismissed.

2. The appeal against sentence is allowed to the extent that the order that the sentence be served consecutively is quashed and in substitution therefore, it is ordered to be served concurrently.

3. For clarity, I record that the sentence now approved and substituted by this Court on the charge of attempted rape is 4 years imprisonment which commenced 10th September 1996 and is to be served concurrently with any term of imprisonment that the Appellant was then serving.

Justice D.B. Pain