Tela v The State [1991] FJHC 3; Haa0096.90s (11 January 1991)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 96 OF 1990

Between:

ISIMELI TELA
Appellant

v.

THE STATE
Respondent

Appellant in Person
Mr. S. Hettige for the Respondent

JUDGMENT

The appellant pleaded not guilty to an offence of Attempted Rape. The trial was a short one in which the prosecution called 4 witnesses and tendered the appellant's caution interview and charge statement. The appellant then made an unsworn statement declaring his innocence and implicating another youth in the crime.

In a judgment which is a hallmark of the particular magistrate, the appellant was summarily convicted in the following two sentences:

"There is over-whelming evidence against this accused. The identification by P.W.2 is positive. The confession was made to both P.W.3 and P.W.4. I find prosecution has proved its case beyond any doubt whatsoever. I find the accused guilty of the charge and convict him accordingly."

Thereafter the appellant was sentenced to 2 years imprisonment.

He now appeals against the sentence on the ground that it is harsh and excessive in all the circumstances of the case.

The prosecution's case was that on the day in question the victim (who was not called in the trial) was dragged by the appellant to a track beside a public road where he punched her and forcibly removed her top but was disturbed before he could progress any further.

Under caution the appellant admitted that he dragged the complainant to a track because he wanted to have intercourse with her. He also admitted punching the complainant on her forehead when she refused and presumably resisted.

It is clear that on the appellant's own admission he had the necessary unlawful intent but an intent alone does not amount to an attempt to commit a crime. In addition, some overt physical act is required which manifests the intention to commit an offence. The answer must necessarily be a matter of both fact and degree.

In the particular circumstances of this case there was no evidence that the victim's panties had been removed nor was there any evidence that the appellant was in such a state of undress or so-positioned on the victim as to be able to penetrate her.

In fact the police investigation and the prosecution's evidence appears to have been directed principally at proving the absence of consent on the part of the victim and not another essential ingredient of rape namely, carnal knowledge or penetration.

At it's highest the prosecution's evidence of "overt acts" in this case may be fairly summed-up as follows:

The appellant with the requisite intent had pulled the victim to a relatively isolated area where he had assaulted her and removed her top. He was also seen lying on the ground with her and holding onto her whilst she was screaming.

Learned State Counsel submits that viewed collectively these 'overt acts' do indeed manifest the appellant's confessed unlawful intention and although it is acknowledged he could have done more, nevertheless, they were sufficient to support the trial magistrate's finding.

With that submission this court reluctantly agrees.

As for his appeal against sentence the appellant submits that he is just 19 years of age and although this is not his first time in prison it is the first time for him to receive such a lengthy sentence. He asks for leniency and a suspended sentence so as to enable him to return to his village and care for his aged parents.

Having considered the facts of this case I am of the view that for sentencing purposes it should have been treated as an aggravated indecent assault for which the appropriate sentence would have been one of 9 months imprisonment. Viewed in that light the present sentence is excessive.

Accordingly the sentence is reduced to 9 months imprisonment with effect from the 14th of September, 1990.

(D.V. Fatiaki)
JUDGE

At Suva,
11th January, 1991.

HAA0096.90S