Nanau v The State [1990] FJHC 34; Haa0024j.89b (16 March 1990)

IN THE HIGH COURT OF FIJI
At Labasa
Appellate Jurisdiction

CRIMINAL APPEAL NO. 24 OF 1989

Between:

(1) BOBI NANAU
(2) SOLOMONE WARARA
(3) TANIELA BALEIKORODAWA
Appellants

v.

STATE
Respondent

Appellants in Person
Mr. R. Perera for the Respondent

JUDGMENT

The appellants were all convicted in the Savusavu Magistrate Court on their guilty pleas to an offence of Rape and sentenced as follows:

The 1st appellant to 4 years imprisonment and 5 strokes of corporal punishment and the 2nd and 3rd appellants to 3 years imprisonment.

They have each appealed against the sentence imposed urging numerous grounds in support of their appeals.

However before dealing with each appellant in turn it is convenient to iterate the facts that were admitted by them before the trial magistrate.

Very briefly, the complainant who was a 14 year old school girl had attended a village function in the evening of the day in question and had returned home with a lighted firewood which she had intended to use to light a lantern.

It is not clearly stated in the facts but it does appear that the 3 appellants had followed her because whilst she was still in the process of lighting the lantern the appellants entered the house and raped her in turn, whilst another kept her mouth closed with a piece of cloth and the third kept a look out.

Fortunately for the complainant a passer-by heard her gasping and opened the door to investigate whereupon all 3 appellants fled out of the house.

The incident was reported to the police and when interviewed, the appellants admitted the offence.

It is not completely insignificant that the complainant suffered no physical injuries as a result of her ordeal and although only 14 years of age her "........ vagina admits two fingers easily without problems".

I turn now to deal with the appellants in turn. The first appellant is the eldest and appears to have been the leader of the group. He is 22 years of age and has a previous conviction for Defilement of a girl under 13 years of age for which he received a sentence of 9 months imprisonment. He has clearly not learnt much from that prison sentence.

He says he had reconciled in the traditional Fijian manner with the complainant's family before the police were involved. If that is really so and the reconciliation was truly genuine then one wonders why the police were ever informed at all in the first place? Unless of course reconciliation was effected after a complaint or report had been made to the police in which event one wonders at the true motives behind the so-called reconciliation.

Nevertheless the complainant's father has confirmed the appellant's offer and their acceptance of reconciliation in the traditional Fijian manner. He claims to be aware of what they did to his daughter and he and his wife and daughter have agreed to forgive the appellants because they are "...... closely related to them" by blood.

Having given the matter careful consideration I do not consider that the first appellant's sentence should be altered. His appeal against the sentence of 4 years imprisonment is accordingly dismissed. The sentence of corporal punishment however is now statute-barred and is set aside.

The position of the 2nd and 3rd appellants is different they are first offenders and both played a marginally secondary role in the incident.

In the case of the 2nd appellant it is unfortunate that his birth certificate was not available in the lower court and he was treated by the court as an adult for sentencing purposes. If the birth certificate had been available, the trial magistrate would have realised that at the time of sentencing, the 2nd appellant was a "young person" not having attained the age of 17 years.

In the case of such an offender, Section 30(2) of the Juveniles Act Cap. 56 provides:

"(2) No young person shall be ordered to be imprisoned for an offence ......... unless the court certifies that he is so unruly a character that he cannot be detained in an approved institution or that he is of so depraved a character that he is not a fit person to be so detained;"

and

Then Sub-Section (3) imposes a further limitation even where a young offender can properly be sent to prison by providing that:

"(3) A young person shall not be ordered to be imprisoned for more than two years for any offence."

Clearly neither provision was brought to the trial magistrate's attention and in any event it is in the interests of all trial magistrates when sentencing young offenders to carefully ascertain their age and to obtain a social welfare report if at all possible before sentencing.

The sentence of the 2nd appellant cannot be allowed to remain and is accordingly set aside and in substitution thereof the appellant is ordered to be released into the care of his father upon he and his father (as surety) entering into a recognizance in the sum of $100 to keep the peace and be of good behaviour for 2 years and in particular towards the complainant Ilisapeci Vika. The appellant is to remain in custody until such time as the recognizance and surety is entered into.

The 3rd appellant's circumstances are similar to those of the 2nd appellant except that he is 18 years of age. In his case too I am able to be lenient. He too is ordered to be released into the care of his father on the same terms and conditions as the 2nd appellant.

(D.V. Fatiaki)
JUDGE

At Labasa,
16th March, 1990.

HAA0024J.89B