Tawake v The State [1993] FJHC 90; Haa0027j.93b (5 October 1993)

IN THE HIGH COURT OF FIJI
At Labasa
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 27 OF 1993

Between:

MIKAELE TAWAKE
Appellant

v.

STATE
Respondent

Appellant in Person
Mr. Ian Wikramanayake for the State

JUDGMENT

The Appellant has appealed against sentence on a number of grounds the main one being that it is harsh and excessive.

On the 18th August, 1993 the Appellant was sentenced to three and a half years' imprisonment by the Magistrate's Court at Labasa for the offence of Rape contrary to section 150 of the Penal Code.

At the hearing the Appellant made a written submission in which he alleges, inter alia, that the complainant had consented to the act of sexual intercourse with him.

The learned Counsel for the State was of the opinion that the sentence is more on the lenient side and than the Magistrates normally are even after allowing for plea of guilty on the part of the accused.

The record of the case shows that the appellant elected trial by the Magistrate's Court and that it was an unequivocal plea of guilty to the charge. Furthermore he admitted the facts of the case as outlined by the prosecution. When he spoke in mitigation he did not raise the matter of consent but went so far as to say that he was sorry for what he had done. I therefore see no merit in this ground of his complaint.

The Appellant stands convicted of a very serious offence involving a girl of very tender age, namely, 12 years of age. He does not deserve any sympathy from the Courts for this type of offence, an offence which is all too prevalent.

The Appellant is fortunate that after taking the mitigating factors into account the learned Magistrate gave him a slightly lenient sentence. I was minded to enhance the sentence but will not do so.

I am satisfied that the sentence of 3 1/2 years' imprisonment for an offence of this nature against which the appellant has appealed is neither harsh and excessive nor wrong in principle. I do not see any reason for reducing the sentence.

The appeal is, therefore, dismissed.

D. Pathik
Acting Puisne Judge

At Labasa
5th October, 1993

HAA0027J.93B