Davui v State [1997] FJHC 67; HAA0010D.1997S (9 June 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO.0010 OF 1997

Between:

WATISONI DAVUI
Appellant

And:

THE STATE
Respondent

Counsel: Appellant in person
Mr. N. Bhindi for Respondent

Hearing: 9th June 1997

Decision: 9th June 1997

ORAL DECISION OF PAIN J

The Appellant was charged in the Magistrates Court with the offence of rape. He pleaded not guilty. After a defended hearing the learned Magistrate delivered a reasoned judgment and convicted the Appellant of attempted rape only. After hearing submissions in mitigation the learned Magistrate sentenced the Appellant to 3½ years imprisonment.

The reason for the reduction of the charge to an attempt was that the learned Magistrate did not consider that penetration had been proved beyond reasonable doubt. He said at pages 34 and 35 of the record:

"PW2 has told the Court that the accused had sex with her by force. She has not however, described how the sexual act took place. That is to say whether the accused penetrated his penis into her vagina. Of course, she has told the court that she felt the accused did not discharge on being disturbed by the presence of PW4 and other two".

He later said:

"There is no clear description of the nature of the sex act spoken of by PW2 and also the medical report is silent on material aspects such as virginity. I am therefore, unable to safely say that that sex act spoken of by PW2 falls within the legal definition of 'sexual intercourse' for the purpose of the offence of rape, although I do not disbelieve PW2. It is therefore unsafe to find the accused guilty of the charge of rape."

Accepting that the evidence fell short of proving penetration, the learned Magistrate found that the acts of the accused in punching the complainant, taking her to the cassava patch, throwing her to the ground, further assaulting her, pulling down her pants and getting on top of her amounted to attempted rape.

There is no appeal against the conviction of attempted rape. That is quite understandable. It is a very favourable decision for the Appellant on the evidence adduced. The Appellant appeals against the sentence of 3½ years imprisonment on the ground that it is harsh and excessive.

The only submission advanced by the Appellant at the hearing relates to his domestic situation. His de facto wife is ill and has nine children to support. The Appellant is the only bread winner. He is needed to look after his de facto wife and children. This same submission was addressed to the learned Magistrate before he imposed sentence. The learned Magistrate said that he felt sorry for the Appellant's de facto wife and children but had to impose a sentence of imprisonment appropriate for the offending.

This was a serious case of assault on the complainant by the Appellant for the purpose of having sexual intercourse with her against her will. It is highly likely that the Appellant completed the act of forceful rape, but, if not, it was all but completed. I must consider the sentence on the basis of a conviction for an attempt only but, at best for the Appellant, there is only a very fine line between this attempt and the completed offence.

It was clearly a traumatic event for the complainant. The Appellant was intent on having sexual intercourse with her although she refused. He punched her causing some injury and she says a short period of loss of consciousness. The Appellant took the complainant to the cassava patch. He further assaulted her, threw her to the ground, put his hand over her mouth, pulled down her pants and lay on top of her. The complainant was crying at the time and continued crying for a long period afterwards. It was only the intervention of other people who heard her crying that saved her further trauma.

The aggravating features in this case are the violence that was used and the fact that the complainant regarded the Appellant as an uncle.

An immediate prison sentence is entirely appropriate for this offending. The Courts and the community deplore such sexual attacks on women. The public requires the Court to take a firm stand and impose condign sentences. The maximum sentence for this offence is seven years imprisonment. As attempts go, this one is in a serious category. Three and a half years imprisonment may be a stern sentence but it is within an acceptable range. Sexual assaults upon women warrant substantial and deterrent sentences. There is no merit in this appeal.

The appeal is dismissed.

Justice D.B. Pain