State v Ali [2020] FJCA 243; AAU20.2019 (8 December 2020)

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

CRIMINAL APPEAL NO.AAU 20 of 2019
[In the High Court at Lautoka Case No. HAC 205 of 2013]

BETWEEN :

STATE
Appellant

AND :

SOHEB NASIR ALI
Respondent

Coram : Prematilaka, JA

Counsel : Mr. M. Vosawale for the Appellant

: Mr. A. J. Singh for the Respondent

Date of Hearing: 07 December 2020
Date of Ruling : 08 December 2020

RULING

[1] The respondent, aged 19, had been indicted in the High Court of Lautoka on a single count of rape contrary to section 207(1) and (2) (a) and (3) of the Crimes Act, 2009, committed at Nadi in the Western Division. The victim was aged 12 years and 11 months at the time of the offence.

[2] The information read as follows

Statement of Offence

RAPE:

Particulars of Offence

SOHEB NASIR ALI between the 1^{st<#160;day of Octo October 2013 and 31st day of Octobe3 at Nadi in t in the Western Division, penetrated the vagina of CRYSTAL DIVASHNI GRACE, 12 year 11 m withpenis.enis.}

[3] At the conclusion of t of the summing-up on 06 February 2019 the9 the majority of assessors opinion that tspondas guilty of the charge of rape. The learned tria trial judl judge had agreed with the assessors in his judgment delivered on 07 February 2019, convicted the respondent and on 08 February 2019 sentenced him to 03 years of imprisonment without fixing a non-parole period.

[4] The appellant had filed a timely notice of appeal against sentence on 08 March 2019 and written submissions on 18 August 2020. The respondent had tendered its written submissions on 16 October 2020.

[5] In terms of section 21(1)(c) of the Court of Appeal Act, the appellant could appeal against sentence only with leave of court. The test for leave to appeal is ‘reasonable prospect of success’ (see Caucau v State AAU0029 of 2016: 4 October 2018 [2018] FJCA 171, Navuki v State AAU0038 of 2016: 4 October 2018 [2018] FJCA 172 and State v Vakarau AAU0052 of 2017:4 October 2018 [2018] FJCA 173, Sadrugu v The State Criminal Appeal No. AAU 0057 of 2015: 06 June 2019 [2019] FJCA87 and Waqasaqa v State [2019] FJCA 144; AAU83.2015 (12 July 2019) in order to distinguish arguable grounds [see Chand v State [2008] FJCA 53; AAU0035 of 2007 (19 September 2008), Chaudry v State [2014] FJCA 106; AAU10 of 2014 and Naisua v State [2013] FJCA 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds.

[6]