State v Pa'u Sorpapelu HAM068D.05S - Law Fiji

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION
Crim. Misc. Case No: HAM 68 of 2005S
Between:
And:
THE STATE
PA’U SORPAPELU
Applicant
Respondent
Hearing: 21 st October 2005
Ruling: 27 th October 2005
Counsel: Mr. D. Gounder for State
Mr. R. Nayacalevu for Respondent
RULING
This is an application for leave to appeal out of
time. On the 17 th of June 2005 the Respondent was
convicted, on his plea of guilty to one count of indecent
assault contrary to section 154(1) of the Penal Code. On
the 14 th of November 2004 he sucked the breast of a 16 year
old girl, as she lay sleeping in his house. She is his
niece. The learned Magistrate considered the case to be
one, not of indecent assault, but of indecently insulting
or annoying a female, under section 154(4) of the Penal
Code. The maximum penalty for a section 154(4) offence is
12 months imprisonment. It is therefore a minor offence in
relation to indecent assault, which carries a maximum
penalty of 5 years imprisonment.

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The learned Magistrate did not convict the Respondent,
but found the case to be a lesser offence under section
169(2) of the Criminal Procedure Code, and conditionally
discharged him saying that he “shall not add more salt to
the already mentally wounded person.” He also found that
the Respondent had performed a traditional apology to the
victim’s family.
The State now wishes to appeal against this section.
It filed an application, by motion and affidavit, on the 7 th
of October 2005. The appeal is 2½ months out of time. The
affidavit of Paulini Madanavosa, State counsel states that
the reason for the delay is that the State was represented
by a police prosecutor in the lower court, the DPP’s Office
was not aware of the proceedings until the docket arrived
at the Office on the 4 th of October 2005 after the victim’s
mother made representations to the Office.
Counsel at the hearing of this application submitted
that the appeal was meritorious, because the learned
Magistrate had failed to consider the effects of the
offence on the victim who is a child, had in error reduced
the charge when the facts did in fact disclose an indecent
assault and had in error considered traditional apology as
mitigation when the victim’s family had never accepted such
reconciliation. He said that there were important issues
to be decided on appeal.
Counsel for the Respondent vigorously opposed the
application, saying that the reasons given by the State for
the late filing were unacceptable, that the DPP’s Office

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was harassing the Respondent and that there were no merits
in the appeal.
The principles relevant to this application are the
cogency of the reasons advanced for delay, the length of
the delay itself, and any merits in the appeal.
In this case the delay is not excessive. The
Respondent has been given a conditional discharge for 12
months and only 2½ months of it had lapsed when this
application was filed. The reason given for the delay is
that the DPP’s Office had no knowledge of the sentence
imposed until the 4 th of October 2005. This application was
made on the 7 th , and accepted for filing on the 11 th of
October. The reason given for the delay is acceptable.
Lastly, the State has persuaded me that the appeal is
meritorious. It is irregular to reduce the charge at the
sentencing stage. If the facts disclose a lesser offence,
the presiding Magistrate must bring this to the attention
of both parties, and inform them that he/she is considering
convicting or finding the accused guilty, of a lesser
charge. It is far too late to convict of a lesser charge
while sentencing.
Without the court record, it is impossible to say
whether the facts failed to disclose an indecent assault.
Prima facie however, the sucking of a girl’s breast as she
lay sleeping (if those were indeed the facts outlined) does
constitute an indecent assault. However, the point must be
fully argued on appeal.

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The appeal therefore appears to have merit. Further,
the State also has arguable grounds of appeal on the weight
placed on reconciliation, and the failure to consider the
impact of the offence on the victim.
In the circumstances I am satisfied that leave should
be granted for enlargement of time. Leave is granted.
Nazhat Shameem
JUDGE
At Suva
27 th October 2005