IN THE HIGH COURT OF FIJI           
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 34 of 2018

ABDUL AZIZ

V

THE STATE

									

Counsel			:	Mr. I. Khan with Ms. S. Khan for the Appellant.	
				:	Mr. A. Datt for the Respondent.

Date of Hearing		:	18 September, 2018
Date of Ruling     	:	02 October, 2018   

JUDGMENT

1.	The appellant was charged with the offence of Indecent Assault contrary 	to section 212 of the Crimes Act 2009.  It was alleged the appellant 	on the 14th day of May, 2013 at Tavua unlawfully and indecently 	assaulted Menaz Nazia Ali. 

2.	The appellant pleaded not guilty to the charge and the matter proceeded to trial.  The prosecution called one witness, the victim and the defence called four witnesses including the accused. 

3.	By judgment dated 29 May, 2018 the Magistrate’s Court at Tavua found the appellant guilty as charged and convicted him accordingly.  On the same day after mitigation the appellant was sentenced to 2 years imprisonment.  Bearing in mind the need for rehabilitation the learned Magistrate did not impose a non-parole period.

4.	Being dissatisfied with the conviction and sentence the appellant filed a timely appeal against conviction and sentence as follows:	

	APPEAL AGAINST CONVICTION 

	GROUND ONE
The learned trial Magistrate erred in law in fact in not directing himself to the evidence of the complainant/witness and as such proper directions ought to have been given regarding taking oath. The failure to do so caused a substantial miscarriage of justice.   

	GROUND TWO
The learned trial Magistrate erred in law and in fact in not taking into consideration that apart from the evidence of the complainant, there was no other independent evidence against the Appellant to prove the case against the appellant beyond all reasonable doubt. 	

	GROUND THREE
The learned trial Magistrate erred in law and in fact in not adequately directing/misdirecting the previous inconsistent statements/evidence made by the Prosecution witnesses and as 	such there has been a substantial miscarriage of justice.

GROUND FOUR
	The learned trial Magistrate erred in law and in fact in not directing 			himself to the possible defence on evidence presented in court and 			as such by his failure there was a substantial miscarriage of justice.

	GROUND FIVE
	The learned Trial Magistrate erred in law and in fact in not directing himself adequately and/or taking into consideration that the 	complaint was lodged several days later after the alleged incident 	and this would have raised serious doubts as to the credibility of the complainant. The failure to consider the delay caused a substantial miscarriage of justice. 

	GROUND SIX
	The learned trial Magistrate erred in law in not giving cogent 	reasons as to why the accused and his witnesses were not believed by the learned trial Magistrate and the failure to do so caused a 	substantial miscarriage of justice.

	GROUND SEVEN
	The learned trial Magistrate erred in law and in fact in not directing himself to the possible defences on evidence and as such by his failure there was a substantial miscarriage of justice. 
 
	GROUND EIGHT
	The learned Trial Magistrate erred in law and in fact not taking into consideration that the alibi that was raised by the accused was not negative by the prosecution and hence a substantial miscarriage of justice.

	GROUND NINE
	The learned trial Magistrate erred in law and in fact not taking into 	serious consideration withdrawal statements that were made by the 		complainant against the accused.  The failure to do so caused 	substantial 	miscarriage of justice.

	GROUND TEN (Additional ground of appeal) 
The learned Trial Magistrate erred in law and in fact when he 	delivered the judgment against the appellant over 4 years after hearing and sentence delivering thereafter was in breach of section 14(2)(g) of the Constitution of Fiji and as such a substantial miscarriage of justice.
	
	APPEAL AGAINST SENTENCE

	GROUND ELEVEN
The Appellant’s appeal against sentence being manifestly harsh and 		excessive and wrong in [principle] in all the circumstances of the 			case.

	GROUND TWELVE
The learned Trial Magistrate took irrelevant matters into consideration when sentencing the Appellant.

5.	The brief summary of facts is:

On 14 May, 2013 at about 8:30am the victim (the daughter-in-law of the accused) was sweeping the kitchen. The wife of the accused was attending to other chores outside the house. The victim was alone in the kitchen. After a while the accused came into the kitchen between the table and the freezer and from behind grabbed the victim. The victim wanted to move herself but could not. The accused held her tightly, held her breast, kissed her on the neck and continued to hold her tightly. She tried to push the accused but couldn’t. The accused inserted his hand into the victim’s panty. The victim was scared and tried to push the accused, at this time the accused made love bite on the victim’s neck.

6.	The matter was reported to the police by the victim. The accused was 	arrested, interviewed and charged.      

7.	Both counsel filed written submissions and also made oral submissions during the hearing for which this court is grateful.

8.	On the day of the hearing the learned counsel for the appellant abandoned the following grounds of appeal namely grounds 1, 2 and 4 in respect of appeal against conviction. 

	GROUNDS OF APPEAL

	GROUND THREE	
	The learned trial Magistrate erred in law and in fact in not adequately 	directing/misdirecting the previous inconsistent statements/evidence 	made by the Prosecution witnesses and as such there has been a 	substantial 	miscarriage of justice.

9.	The appellant’s counsel submits that the defence during the course of the proceedings had put to the complainant her police statement.  The complainant had given one version to the police when facts were fresh in her mind and she gave another version in court. 	Counsel argues this affected her credibility as a witness and the learned Magistrate had failed to take this aspect into consideration.

10.	This court notes that the learned Magistrate had not made any observations about the police statement the victim had given to the police with her evidence in court when she was cross examined by defence counsel.

11.	On about five occasions the defence counsel had put to the complainant her police statement in respect of the charge.  

a). At page 29 of the copy record the following is recorded:

	“Q126: Nothing wrong to invite someone to sleep with you?
	A: I didn’t like what my father-in-law said.
	Q127: Stated in your statement?
	A: Yes but officer didn’t write it down in statement”…

12.	b). At page 32 of the copy record the following is recorded:

	“Q194: What’s wrong with saying for you to go into his room?
A: Yes he said for me to sleep with him. Shown statement – only reads accused said to go into his room. 
	Q195: Is it in statement?
	A: No.”

	c). At page 33 of the copy record the following is recorded:

	“Q. 202:	What’s in kitchen?
	A:		2 tables size of bar tables.  There’s also freezer cabinet.
	Q. 203:	You told police only one table?
	A:		I am only describing one table where incident occurred.
	Q. 204:	 What happened?
	A:	 	He hold me from back.
	Q.205:	 You told police in statement?
	A:		No.
	Q. 206:	Why didn’t you tell police?
	A:	 	I just informed them he grabbed me and I tried to push him.

	Q. 207:	How do you push him?
	A:		I was using my elbow.
	Q. 208:	You didn’t state in statement?
	A:		No.
	Q. 209:	You tried to push him?
	A:		When he grabbed me I turned around.”

13.	d). At page 35 of the copy record the following is recorded:

	Q. 240: 13/5/13 he did something to you?
	A: He held my breast.
	Q. 241: you told police?
	A: I can’t recall.
	Q. It’s not recorded that 13/5/13 he held breast?
	A: No on 14/5/13 he held my breast not 13/5/13.”

e). At page 40 of the copy record the following is recorded as follows:

	“Q. 328:	Other hand inside panty?
	 A:		Just place there half way, I tried to pull it but couldn’t. 

	Q. 329:	You pulled both hands?	
	A:		Yes.

	Q.330:	It’s not contained in statement to police?
	A:		It’s just half way that’s what I stated to police. 

	Q.331:	Only one hand placed in panty as stated to police but he put 				both hands in statement.  You tried to pull his hands out?
	A:	 	Yes.” 

14.	When one looks at the above questions and answers and/or the explanations given by the victim the omissions, contradictions and discrepancies do not discredit the entire evidence of the victim. The learned Magistrate when assessing the evidence believed the victim which suggests the evidence of the victim holistically was not affected. 	
15.	Passage of time has an effect upon a person’s memory, it is important to note that the omissions, contradictions and discrepancies relate to peripheral issues which were not significant to affect the reliability of the victim’s evidence. The victim was steadfast in her evidence of what the appellant had done to her and her evidence in this regard was not shaken at all during the vigorous cross examination. 
16.	The Supreme Court of India in a judgment arising from a conviction for rape in  Bharwada Bhoginbhai Hirjibhai v State of Gujarat [1983] AIR 753, 1983 SCR (3) 280) made the following pertinent observations:
	“Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all-important "probabilities-factor" echoes in 	
favour of the version narrated by the witnesses. The reasons are: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen; ... (3) The powers of observation differ from person to person. What one may notice, another may not... It is unrealistic to expect a witness to be a human tape recorder; (5) In regard to  exact time  of an  incident, or  the time duration  of  an  occurrence,  usually, people make  their estimates by  guess work  on the  spur of  the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends.  On the 'timesense' of individuals which varies from person to person…”

17.	In Josua Natakuru v The State, criminal appeal no. HAA 22 of 2016 Aluthge J. made the following observations at paragraph 12:  
	It is well settled that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be discredited or disregarded. Thus an undue importance should not be attached to omissions, contradictions and discrepancies, which do not go to the heart of the matter and shake the basic version of the prosecution’s witnesses.
18.	Similar sentiments were echoed by Justice Shameem in Vinod Prasad v The State, criminal appeal no. HAA 055 of 2003S where Her Ladyship said:
 		Indeed, there is no law that requires witnesses to give evidence strictly in accordance with their statements. Most witnesses give greater or lesser detail in court. Much depends on their memories, the skill of whoever took their statement and the way their evidence is led in court. Inconsistencies between statement and evidence may assist the court in weighing up reliability and credibility. However the out-of-court statements are not evidence. What is said in the witness box is evidence. 

19.	A human mind does not have a photographic memory they are bound to be some omissions, contradictions and discrepancies between what a person had told the police when giving the police statement compared to his or her evidence in court after a lapse of time. 

20.	The omissions, contradictions and discrepancies pointed out by the defence counsel during trial did not affect the reliability of the victim’s evidence that is the reason why the learned Magistrate did not direct his mind to the previous inconsistent statement of the victim in his judgment.  

21.	This ground of appeal is dismissed due to lack of merits.

	GROUND FIVE
	The learned Trial Magistrate erred in law and in fact in not directing himself adequately and/or taking into consideration that the complaint was lodged several days later after the alleged incident and this would have raised serious doubts as to the credibility of the complainant.  The failure to consider the delay caused a substantial miscarriage of justice. 

22.	The victim was the daughter-in-law of the appellant who was living with her husband as part of the extended family under one roof.  From the evidence it is obvious that the in-laws had control over what was happening in the house.  The victim was not at liberty to leave the house as she would have liked to.  The only way out of the house was for the victim to lie to her in-laws as to where she was going to.  This aspect of the victim’s evidence was taken into consideration by the learned Magistrate at paragraph 24 of the judgment as: 

“… I accept that PW1 admitted that she was lying to her in laws that she was going to the hospital when she instead went to police to report.  According to PW1, her in laws didn’t send her to report the matter to police and that is why she lied that she was going to the hospital…”

23.	The date of the allegation was 14 May, 2013 and the report was lodged by the victim to the police on 17 May, 2013.  The delay was not substantial considering the circumstances of the victim. The victim reported the matter to the police when the opportunity presented itself.  As per the evidence of the victim she had informed her mother-in-law and her husband after the incident but both did not believe her (page 21 and 22 of the copy record).

24.	This ground of appeal is also dismissed due to lack of merits.

	GROUND SIX
	“The learned trial Magistrate erred in law in not giving cogent reasons as to why the accused and his witnesses were not believed by the learned trial Magistrate and the failure to do so caused a substantial miscarriage of justice.

25.	Counsel for the appellant submits that the learned Magistrate had failed to give cogent reasons why he did not believe the accused and the defence witnesses.

26.	From paragraph 18 to paragraph 23 of the judgment the learned Magistrate discussed the defence case and made reference to the evidence of all the defence witnesses.

27.	At paragraph 19 the learned trial Magistrate after assessing the demeanour of the appellant and his wife came to the conclusion that they were evasive and untruthful.  The court rejected the assertion by the appellant that he did not have access to his own house. The appellant had told the court he does not have access to go inside the house before he goes to the farm and that he does not go into the kitchen.  The learned Magistrate concluded that the reasons given by the appellant was illogical.

28.	In rejecting the evidence of the appellant’s wife (DW3) the learned Magistrate stated that it cannot be true that DW3 was always with the appellant in whatever he does and wherever he goes in particular when the appellant had informed the court that he had gone to the house of DW1( Atteh Mohammed) on 15th and 16th May alone.  Furthermore, the learned Magistrate had found the wife of the appellant to be an evasive witness as well.

29.	This ground of appeal is also dismissed due to lack of any merits.

GROUND SEVEN
	“The learned trial Magistrate erred in law and in fact in not directing 	himself to the possible defence on evidence presented in court and as such 	by his failure there was a substantial miscarriage of justice.

30.	Counsel for the appellant submits that the learned Magistrate had failed to direct his mind to the possible defences which was available to the appellant as the evidence had unfolded.  

31.	The appellant had relied on the defence of alibi.  The appellant in his defence was suggesting that he was not inside the house where the alleged incident had taken place. At paragraph 23 of the judgment the learned Magistrate did direct his mind to the defence of alibi raised by the appellant during the course of the hearing as follows:

“The evidence of DW1 was basically to establish alibi in relation to certain incidents raised by PW1 on 15/5/13 and 16/5/13.  I do accept as per the evidence that accused was at DW1’s place from 6am – 9pm on 15/5/13 and 16/5/13 and that PW1’s evidence may be unreliable in that regard.  However, the alibi raised is peripheral to the principal charge on 14/5/13.  I still find PW1’s evidence in relation to the principal charge on 14/5/13 as credible and believable.”

32.	The learned Magistrate had correctly directed his mind to the defence raised by the appellant which was clearly obvious from the evidence and no error can be attributed to the learned Magistrate in this respect. 

33.	The fact that defence counsel during the cross examination of the victim had raised delay in reporting to police, no one had seen the love bite on the neck of the complainant, withdrawal of complaint before an advisory councilor did not tantamount to possible defences but went to the credibility of the complainant. The only defence relied upon by the defence at trial was alibi which was properly addressed by the learned Magistrate.    

34.	This ground of appeal is also dismissed due to lack of merits.

GROUND EIGHT
	“The learned Trial Magistrate erred in law and in fact not taking into consideration that the alibi that was raised by the accused was not negative by the prosecution and hence a substantial miscarriage of justice.

35.	As part of his defence of alibi the appellant called Atteh Mohammed (DW1) who informed the court that on 15 May, 2013 and 16 May, 2013 the accused was at the house of DW1 (Atteh Mohammed) from 6am to 6pm which was accepted by the learned Magistrate.

36.	The appellant’s wife (DW3) told the court in her evidence that she was always with the appellant inside the house and would always see him when he was inside the house.

37.	When the defence of alibi is raised it is incumbent upon the prosecution to disprove that defence beyond reasonable doubt.  The Court of Appeal in Laisenia Bese and Are Amae v. The State AAU 0067 of 2011 confirmed the above principle of law at paragraphs 9 and 10 as follows:
“[9] 	…In Rex v Anderson [1991] Crim. L.R. 361 the Court of Appeal stated that (pg. 362) “It was certainly better if a judge when dealing with an alibi defence repeated that the burden was on the Crown to disprove it…”
[10] 	Beldam L.J in Robert David George Haron [1996] 2 Cr App R 451 at 461 held that, “The jury would have understood that they had not only to be sure that the alibi was wrong, they had to be sure that the Crown evidence was right…”

38.	The prosecution disproved the defence of alibi whilst cross examining the appellant and his wife which led to the learned Magistrate concluding that they were not to be believed. On the other hand, the learned Magistrate accepted the evidence of the victim who maintained that the accused was present in the kitchen on 14 May, 2013 at about 8.30am when the appellant’s wife was not in the house. 

39.	The learned Magistrate accepted the evidence of the victim as reliable and truthful and rejected the evidence of the appellant and his wife who were found to be evasive. In this way the prosecution had disproved the defence of alibi beyond reasonable doubt.

40.	This ground of appeal is also dismissed due to lack of merits.

GROUND NINE
	“The learned trial Magistrate erred in law and in fact not taking into 	serious consideration withdrawal statements that were made by the 	complainant against the accused.  The failure to do so caused substantial 	miscarriage of justice”

41.	The appellant’s counsel submits that the victim had made a written statement in which she indicated her wish to withdraw her complaint. Counsel further stated that the letter of withdrawal was signed by the victim in front of the advisory councilor and justice of peace. 

42.	At paragraph 25 of the judgment the learned Magistrate when considering the issue of withdrawal of victim stated inter alia:

“…It was only after she reported the matter to police that the allegation of withdrawal statement came up.  As I see it, the withdrawal statement was initiated not by PW1 but by accused and his family, to safeguard accused interest.”

43.	The following cross examination at page 49 of the copy record is relevant:

	Q.506:	You gave statement to police later on about withdrawing 				charges?
	A:		Yes.

	Q.507:	What you tell Police?
	A:	 	I gave statement to advisory.

	Q. 508:	What did you tell advisory?
	A:		I didn’t say anything.

	Q.509:	Who is advisory.
	A:	 	Sarojini.

	Q.510:	You told her you want to withdraw?
	A:		Yes.

	Q.511:	See your signature?
	A:		Yes.

	Q.513:	If you didn’t want to withdraw why then did you sign?
	A:		Ms. Sarojini forced me to sign.  She said we are separate 				therefore I can sign. She told me to [leave] father-in-law as we 				like in same compound.”

44.	The above was taken into consideration by the learned Magistrate at 	paragraph 24 as:

	“… I also accept her evidence that she was forced by accused and her 	family through the advisory counselor and the JP to make withdrawal 	statements.”

45.	Section 56 of the Criminal Procedure Act deals with the institution of proceedings in the Magistrates court as follows:

	56 (1)	Criminal proceedings may be instituted by –
 
a) 	the making of a complaint in accordance with this Part; or

(b) 	by bringing a person before a magistrate after the person has
	been arrested without warrant.

 (2) 	Any person who believes from a reasonable and probable cause that
	an offence has been committed by any person may file a complaint 			with a Magistrates Court.

(3) 	A complaint may be made under this section orally or in writing.

(4) 	f a complaint is made orally it shall be reduced to writing by the
	Magistrates Court, and shall be signed by the complainant and the 	officer of the Magistrates Court authorised to receive the complaint.

(5) 	Where proceedings are instituted by a police officer or other officer
	acting in the course of a lawful duty, a formal charge duly signed by 		the police officer or other officer may be presented to the Magistrates 		Court and shall, for the purposes of this [Act], be deemed to be a 			complaint.

(6) 	Upon receiving any complaint (unless such complaint has been laid 			in the form of a formal charge under sub-section (5), the Magistrates 			Court shall–

	(a) draw up or cause to be drawn up a formal charge containing a
	statement of the offence with which the accused is charged; and

	(b) issue the formal charge in accordance with procedures approved
	by the Chief Magistrate.

(7) 	When an accused person who has been arrested without a warrant 			is brought before a magistrate, a formal charge containing a 	statement of the offence with which the accused is charged shall be signed 	and presented by the police officer preferring the charge.

46.	The Supreme Court of Queensland in Potts v Brooks, ex parte Potts (1983) 2 Qd. R. 48) held that; 
"the term complainant means the person who makes the complaint before a justice of the peace and initiates proceedings and does not mean necessarily the person injured by the conduct complained of".
Pain J. in State v Wainiqolo (1998) FJHC 29; HAA 0117d.97s. (5 March 1998) found that the complainant in the Magistrate’s Court was the police officer who signed the complaint under section 78 of the Criminal Procedure Code, (now Section 56 of the Criminal Procedure Act), where His Lordship held that; 
“In terms of Section 203, the complainant did not appear. The complainant is the Police Officer who signed the complaint under section 78…”

47.	In my judgment the complainant in the proceedings at the Magistrate’s Court was the police officer who made the complaint to the Magistrate’s Court. 

48.	In criminal proceedings a complaint is made by a public official namely a police officer, the victim is only a witness.  It is the prerogative of the prosecuting agency or the Director of Public Prosecutions whether a complaint is withdrawn or not.  The victim had clearly stated in her evidence that she was forced into signing the letter of withdrawal. Even if she wanted to withdraw her complaint this was not possible since she was only a witness in the case. The offence was committed against the State so the victim had no legal basis to withdraw the complainant.  The learned Magistrate was correct in not giving any weight to the letter of withdrawal signed by the victim which was obviously signed under duress. 

49.	This ground of appeal is also dismissed due to lack of merits.

	GROUND TEN
“The learned Trial Magistrate erred in law and in fact when he delivered the judgment against the appellant over 4 years after hearing and sentence delivering thereafter was in breach of section 14(2)(g) of the Constitution of Fiji and as such a substantial miscarriage of justice.”

50.	The counsel for the appellant submitted that on 29 April, 2014 the victim gave evidence (page 20 of the copy record) on 12 February, 2018 the accused and his witness gave evidence (page 58 of the Copy Record) and on 29 May, 2018 the accused was sentenced (page 15 of the copy record).  Counsel relies on the case of Mohammed Janif v State, Criminal Appeal no.  HAA 18 of 2018 (21 August, 2018), in that appeal Madigan J. had held that since the judgment was delivered nearly 2 years after hearing and sentence was delivered 19 months thereafter, the appellant’s Constitutional right under section 14 (2)(g) had been breached. 

51.	When one looks at the reasoning of Madigan J. at paragraphs 25, 27, 29 and 30 of Janif’s case the evidence adduced in the Magistrate’s Court was weak to sustain a conviction. Furthermore, there was no evidence of any delay caused by the appellant which had led to the delay in the completion of the trial and the subsequent judgment.    

52.	Here the victim started giving evidence on 29 April, 2014, cross examination started the same day.  The defence counsel asked for an adjournment (page 36 of the copy record).

53.	On 6 May, 2014 the cross examination continued, after the close of prosecution case the defence raised that the prosecution be compelled not to close its case but to call other witnesses and that there was no case to answer on the evidence adduced. After exchange of submissions between the prosecution and defence on 25 August, 2014 the learned Magistrate refused the application of the defence and ruled that the appellant had a case to answer.

54.	After numerous adjournments at the request of the defence counsel the matter was assigned a hearing date for 9 November, 2015. On this day the defence counsel sought the trial be vacated due to a High Court trial on the same date.  It was only on 12 February, 2018 the defence opened its case and the trial was completed.  The judgment was delivered on 29 May, 2018.  

55.	A perusal of the copy record clearly shows that it was the defence that was dragging the matter after the court had ruled that the appellant had a case to answer.  The appellant obviously knew what was happening after counsel instructed by him appeared not too keen to open the defence case.  In the circumstances the appellant has waived his right to complain and cannot therefore complain about the lateness in his trial and then seek refuge under section 14 (2) (g) of the Constitution which states that every person charged with an offence has the right to have the trial begin and conclude without unreasonable delay.

56.	The learned Magistrate did not delay the matter after the trial was completed the judgment was delivered a little over 3 months. Furthermore, the judgment in its totality when compared with the evidence does not suggest that the delay in the completion of the trial had any impact on the assessment of the evidence, finding of credibility and application of the facts to the law. The conclusion reached by the learned Magistrate was in accordance with the evidence adduced at trial.   

57.	This ground of appeal is also dismissed due to lack of merits. 

	APPEAL AGAINST SENTENCE

	GROUND ELEVEN
	“The Appellant’s appeal against sentence being manifestly harsh and 	excessive and wrong in [principle] in all the circumstances of the case.

	GROUND TWELVE
	“The learned Trial Magistrate took irrelevant matters into consideration 	when sentencing the Appellant.”

58.	Both grounds of appeal will be addressed together. 

	LAW

59.	The Supreme Court of Fiji in Simeli Bili Naisua vs. The State, Criminal Appeal No. CAV0010 of 2013 (20 November 2013) stated the grounds for appeal against sentence at paragraph 19 as:-

“It is clear that the Court of Appeal will approach an appeal against sentence using the principles set out in House v The King [1936] HCA 40; (1936) 55 CLR 499 and adopted in Kim Nam Bae v The State Criminal Appeal No. AAU0015 at [2].  Appellate Courts will interfere with a sentence if it is demonstrated that the trial judge made one of the following errors:-

(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.”

60.	Counsel for the appellant submits that the learned Magistrate did not 	give adequate consideration to the Sentencing and Penalties Act by 	failing to properly assess the appellant’s culpability and degree of 	responsibility as required by section 4(2) (d) of the Sentencing and 	Penalties Act, the appellant’s previous good character, the general 	reputation of the appellant and the contributions made by the appellant 	to the community.

61.	Furthermore counsel submits that the learned Magistrate did not take 	into account the fact that the incident happened in 2013 and the 	decision was given after five years of suffering and stress by the appellant 	which was a mitigating factor. 

62.	At paragraph 3 of the sentence the learned Magistrate considered the 	following mitigation on behalf of the appellant. 

•	At your age of 64 years this is your first offence.
•	You are married with 5 children.
•	You are a farmer and have your own production from the farm.
•	You maintain you are innocent.”

63.	The learned Magistrate had taken into account all the relevant mitigating factors under broad headings. 
64.	It is not for an Appellate Court to revisit mitigation which was all before the Magistrate at the time of sentencing unless manifest injustice will be caused to the appellant (see Josaia Leone & Sakiusa Naulumatua vs. State [2011] HAA 11 of 2011 (8 July, 2011). 
65.	The learned Magistrate had complied with the purposes of the sentencing guidelines stated in section 4 (1) of the Sentencing and Penalties Act and the factors that must be taken into account namely section 4 (2) (j).
66.	It is not incumbent upon a court to list and consider every point made by counsel. The court will of course consider and adopt all points that are relevant. 	
67.	Furthermore, there is no requirement of the law that where there are several mitigating factors each one of them should be dealt with separately. 	The Supreme Court in Solomone Qurai vs. The State, Criminal Petition No. CAV 24 of 2014 (20th August, 2015) stated this very clearly at paragraph 53 in the following words:-
	“Although section 4 (2) (j) of the Sentencing and Penalties [Act] requires 	the High Court Judge to have regard to the presence of any aggravating 	or mitigating factor concerning the offender or any other circumstance 	relevant to the commission of the offence, there is no requirement that in 	any case where there are several mitigating circumstances, each one of 	them should be dealt with separately…”
68.	Counsel also submitted that the delay in the finality of his matter which happened in 2013 was a form of punishment which should have reduced the sentence even further.  Counsel relied on State v Alipate Sorovanalagi and others [2012] FJHC 1135; HAR 006 of 2012 (31 May 2012) in particular to paragraphs 36 and 37:

	Paragraph 36
The age of the offence or any post charge delay, if applicable, is relevant when it comes to sentencing. In Sahim v the State, Misc. Action No.17 of 2007, the Court of Appeal said at paragraph 29:
"...Where the issue is raised on appeal, and the appellant was fairly tried despite the delay, his or her remedy lies in the proportionate reduction of sentence or in the imposition of a non-custodial sentence."

Paragraph 37
In Boolell v The State (Mauritius) [2006]UKPC 46 (16 October 2006), the accused was convicted of swindling and sentenced to 6 months imprisonment, after 12 years of post charge delay. By the time his appeal was heard by the Privy Council, the post charge delay was 15 years. The Privy Council found that although the delay in holding trial was unreasonable, the trial was fair and the conviction should stand. The Privy Council outlined the appropriate remedy for the accused person's breach of right to be tried within a reasonable time at paragraph 39:
"The Board must therefore determine the remedy which is to be afforded to the appellant. In the light of its finding that the trial was not unfair, the Board does not consider that the conviction should be set aside. On the other hand, their Lordships would not regard it as acceptable that the prison sentence imposed by the Intermediate Court should be put into operation some 15 years after the commission of the offence unless the public interest affirmatively required a custodial sentence, even at this stage. This is not such a case, and their Lordships will set aside the prison sentence and substitute for it a fine..."
69.	The argument by counsel that the learned Magistrate should have given the appellant a discount since the charges were hanging over his head for 5 years was a form of punishment is misconceived.  The appellant had pleaded not guilty and had maintained this throughout his trial which was his right. After the prosecution had closed its case the defence had time and again asked for more time to open its case. The defence counsel had the opportunity to ask for an early hearing date but this was not done.    

70.	The appellant after causing the delay in having his matter determined by the court cannot rely on the age of the offence or any post charge delay as a mitigating factor to receive a discount or reduction in his sentence, regard must be made to the seriousness of the offence committed and the length of the sentence imposed. In the circumstances of this case the age of the offence and the post charge delay are not applicable as a mitigating factor taking in to account the seriousness of the offence committed and the length of the sentence imposed. The case of Sorovanalagi (supra) is distinguished from the present case.

71.	The learned Magistrate had properly directed his mind to the mitigation offered by the appellant and had given appropriate discount in exercise of his discretion in the circumstances of the case. The learned trial Magistrate did not err when he allowed 12 months for the appellant’s mitigation and previous good character.  

72.	The Supreme Court in Anand Abhay Raj v The State, CAV 0003 of 2014 	(20 August, 2014) had made it clear that the personal circumstances of 	an accused has little mitigatory value in cases of sexual nature.

73.	The learned Magistrate had correctly exercised his sentence discretion the final sentence is within the tariff, considering the importance of rehabilitation a non-parole period was not been imposed.  This in my judgment is in favour of the appellant.  The tariff for the sentence of indecent assault is from 1 year to 4 years. The sentence of 2 years imprisonment is neither harsh nor excessive.  The appellant should consider himself lucky to be sentenced on the lower range of the tariff since the manner of the offending does suggest a certain degree of planning which was not taken as an aggravating factor to increase the sentence.  

74.	The appeal against sentence is dismissed for lack of merits.

	ORDERS
1.		The appeal against conviction and sentence are dismissed due to 	lack of merits.

2.		30 days to appeal to the Court of Appeal. 

Sunil Sharma
Judge

Solicitors
Messrs. Iqbal Khan & Associates, Lautoka for the Appellant.
Office of the Director of Public Prosecutions for the Respondent.