Naisilisili v The State [1991] FJHC 29; Haa0021.1991 (11 April 1991)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 21 OF 1991

Between:

ALIVERETI NAISILISILI
Appellant

v.

THE STATE
Respondent

Appellant in Person
Mr. S. Senaratne for the Respondent

JUDGMENT

The appellant pleaded guilty to an offence of Attempted Rape and was sentenced to 18 months imprisonment.

He now appeals against both his conviction and sentence on numerous grounds which may be summarised as follows:

(1) a denial of his right of election;

(2) insufficiency of the facts outlined; and

(3) the harshness of the sentence.

The first ground of appeal may be quickly disposed of by reference to the Electable Offences Decree No. 22 of 1988 which extinguished the right of election for an offence of Attempted Rape. This ground is dismissed as being without merit.

The second ground of appeal however requires a closer analysis of the charge and the facts outlined. It is convenient therefore to set out the accepted facts outlined by the prosecutor in the lower court. These were as follows:

"On 3.11.90, at 1.00 a.m., the complainant was returning home at Lami from a Hotel after a dance. She was accompanied by another girl. When they reached a shop near Lami Village, the accused and another approached them. The companion of the complainant was ahead. The accused and his friend grabbed the complainant and pulled her to the side of the road. The complainant was struggling and yelling. The accused asked her to keep quiet as he only wanted to have sex. When the complainant did not stop yelling she was punched. They passed a fence. The complainant grabbed the fence. Hearing the cries of the complainant, some people came towards them. The accused and his companion dropped her on the ground and ran. The complainant was taken to the village and then to the Police Station. She received injuries and was taken to hospital. According to the complainant this accused was the first to grab her. She knows this accused. The other person is not known to her. When the accused was located and questioned he admitted the offence. The accused said he did not know the other person."

It is sufficiently clear that the appellant by his declaration desired to have intercourse with the complainant and had that been the only 'overt act' alleged against him there could not be said to have been any offence committed, but by his actions of pulling and assaulting the complainant, the appellant's otherwise innocuous intention becomes manifestly an intent to have intercourse without the complainant's consent and that is an offence.

Accordingly the appellant has been properly convicted and his appeal against conviction is dismissed.

As for sentence however this was an offence in which the appellant's overt acts (in the absence of his declared intention) could be said to be equivocal. Indeed the end result of his acts were that the complainant received a "black-eye".

In the circumstances I am content to treat this case for sentencing purposes as being an aggravated Assault Occasioning Actual Bodily Harm. Viewed in that light it was not as serious an offence as it first appears in the charge.

The appellant's sentence is accordingly reduced to 12 month's imprisonment with effect from the 21st of January, 1991.

(D.V. Fatiaki)
JUDGE

At Suva,
11th April, 1991.