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State v Fong Toy [2008] FJHC 223; HAA003.2008 (15 September 2008)

IN THE HIGH COURT OF THE FIJI ISLANDS
APPELLATE JURISDICTION
AT SUVA

Criminal Appeal Case No. HAA 003 of 2008

BETWEEN:

THE STATE
Appellant

AND:

PHILIP FONG TOY
Respondent

Counsel: Ms. N. Tikoisuva for the Appellant
Respondent in Person

Date of Hearing: 5 September 2008
Date of Ruling: 15 September 2008.

RULING

1. Philip Fong Toy, the Respondent in this appeal was charged with four counts of Rape, contrary to sections 149 and 150 of the Penal Code Cap 17. The four counts of rape refer to 4 separate and distinct incidents involving the same child.
   
2. The Respondent pleaded guilty. He was sentenced to 6 years imprisonment for each of the 4 counts of rape on 27 January 2006. The sentences on each count were ordered to run concurrently.
   
3. By a Petition of Appeal dated 9 February 2006 and filed in the Labasa Magistrates Court Registry on 16 February 2006, the Director of Public Prosecutions as representative of the State, submitted the following two ground of appeal:
   
   1. The learned magistrate erred in law and fact in failing to consider the seriousness of the offence, and that it warranted a consecutive sentence;
      
   2. The sentence imposed by the learned Magistrate was manifestly lenient having regard to all the circumstances of the case.
      
4. The Respondent filed an application for leave to appeal out of time on 8 November 2006. Leave to appeal out of time was granted on sentence only because the appeal by the State was within the prescribed period and the respondent was intending to seek leave to appeal against sentence, which the State had already submitted its appeal because it was lenient. The appeal and the cross-appeal by the respondent will be heard together on 5 September 2008.
   
5. It should be noted that the appellant was given 10 weeks to seek legal counsel from the Legal Aid Commission, but his application was in the end declined. It was after that process was completed, that the appeal was heard.
   

Grounds of Appeal & Submissions

6. The State submits that the sentence was manifestly lenient having regard to all the circumstances of the case. The circumstances which the State submits shows that the sentence is manifestly lenient are:
   
   1. The victim was 14 years old at the time of the rape;
      
   2. The position of trust the respondent was in, at the time he was committing the 4 counts of rape. The victim was a step-daughter;
      
   3. The fact that threat and force were used to procure sexual intercourse with the victim;
      
   4. The fact that the victim is now pregnant at 15 years of age;
      
7. The State further submits that if the learned magistrate had correctly applied the sentencing guidelines for rape cases against a child given by the Court of Appeal in Mohammed Kasim v The State, FCA, Crim App Case No: AAU 043 of 1993 and how the High Court has applied those principles in State v Nacanieli Marawa, the proper sentence for each count should be 11 years imprisonment and not 6 years.
   
8. The Respondent submits that the sentence of 6 years imprisonment for each count is harsh and excessive. He has referred the court to 7 Magistrate Court cases where the sentence for rape ranges from 2.5 years to 5 years. He has not stated whether these cases involve the rape of a child in circumstances similar to the rape cases here. Without actually stating it, but by implication, the Respondent is suggesting that the sentence in each count of rape in which he pleaded guilty be in that range i.e. 2.5 to 5 years.
   

Appeal Determination

9. In making the determination of the appropriate sentence, I have considered the submissions from both the State as the appellant and from the respondent. I have chosen to review the sentence passed by the learned Magistrate, after considering the submissions made in this appeal hearing and adopting the approach of rehearing the issues for sentence.
   
10. The guidelines in sentencing determination in cases of the kind in question here was set out by Court of Appeal in Mohamed Kasim v The State [1994] AAU 021 of 1993. It should be noted that since that decision Parliament has passed an amendment in 2003, to the Criminal Procedure Code Cap 21 giving the courts powers to impose higher sentences in sexual violence cases involving women and children in particular. The Court of Appeal have in Asesela Drotini v The State [2006] AAU 001 of 2005, observed that a sentence of more than 11 years would have been justified in a case where the father of a 9 year old girl raped her twice over a period of 3 years and also indecently assaulted her once.
    
11. In response to the 2003 amendment to the Criminal procedure Code Cap 21, the High Court has began to review its sentences in rape case involving breach of trusts. In The State v Lepani Saitava [2007] HAC 010 of 2007 The High Court has said that the tariff for the rape of children range from 10 to 13 years. A similar position was held by Gates J in The State v Nacanieli Marawa [2004] HAC 016 of 2003, where 13 years imprisonment was passed for two counts of rape involving a 14 year old niece entrusted to the accused care.
    
12. It is important that it be made clear that the High Court will be severe in its sentencing approach when confronted with cases involving sexual violence against women, especially young women who are in position of trust with the person who commits the criminal acts in question.
    
13. In this case, given the persistent nature of the offending against the victim who was and still is a child and the fact that sexual offending against children is particularly abhorrent. The fact that the victim has since become pregnant and the likely social and psychological consequences of such depraved acts of the appellant, I consider 10 years imprisonment as the proper starting point for sentence in the circumstances of this case.
    
14. Before the learned Magistrate, counsel for the respondent submitted mitigating factors. It is not evident from the sentence ruling that the learned Magistrate discounted the sentence. Having read those mitigation factors, I would reduce the sentence by 1 year to 9 years imprisonment.
    
15. Before the learned Magistrate, there were nine aggravating factors considered and he increased the sentence by 3 years. I have reviewed those factors and the increase in the sentence. I do agree with the evaluation of the learned Magistrate in this regard.
    
16. I would increase the sentence by 3 years to 12 years imprisonment.
    
17. The Appellant’s guilty plea requires that a discount of 3 years be given, thus leaving a sentence of 9 years imprisonment for each count of rape charged against the appellant.
    
18. This would mean a total imprisonment term of 36 years. Clearly the court must consider the totality principle and 36 years would be harsh and excessive, given the age of the appellant.
    
19. In considering the proper sentence in the circumstances of this case, I took into consideration the following:
    
    1. The offending in this instance do not form a single transaction, they occurred as four separate and distinct criminal transactions;
       
    2. The acts of the appellant perpetrated on the young victim in flagrant abuse of appellant’s dominant position of trust;
       
    100. The sentence must take into consideration
         
20. The serious and heightened concern of the public, against the prevalence of sexual offences involving child victims who are often at the mercy of persons who hold a dominant position of trust over them. This was the case here. The court must where appropriate on the facts before them respond to these legitimate concerns in passing sentence that underscore that community concern and abhorrence.
    
21. Having weighed all the above and applying the totality principle, I determine the proper sentence in this case for the four counts of rape as 14 years imprisonment.
    
22. I conclude that the appeal has merit and it must succeed. The sentence of 6 years imprisonment is set aside to be substituted with 14 years imprisonment effective from 27 January 2006.
    

ORDERS

23. I make the following Orders:
    
    1. This appeal succeeds against sentence;
       
    2. The sentence of 6 years imprisonment is set aside to be substituted with 14 years imprisonment effective from 27 January 2006.
       

Isikeli Mataitoga
JUDGE

At Suva
15 September 2008.