Dakai v The State [1998] FJHC 104; Haa0026j.98b (20 July 1998)

Fiji Islands - Dakai v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 26 OF 1998

IGN=CENTER>BETWEEN:

:

FABIANO DAKAI
Appellant

AND:

STATE
Respondent

&n/p>

Appellant in person
Ms. Anuja Sukhdeo for the Stae State

JUDGMENT

The appellant was convicted in the Magistrate's Court at Labasa on his own plea of the offence of rape contrary to sections 149 and 150 of the Penal Code.

The particulars of offence reads that on 20 April 1998 at Sauniduna, Seaqaqa in the Northern Division the appellant had carnal knowledge of LITIANA DIMATEMATE without her consent.

On his conviction he was sentenced to imprisonment for five (5) years with a recommendation that he be given five (5) strokes of the birch.

Although the appellant has filed a number of grounds alleging that he did not commit the offence and that he was forced to admit it, on the day of the hearing of the appeal he told the court that the appeal is only against sentence on the ground that it is harsh and excessive.

The appellant is a 29 year old farmer; he is married with a one year old child. He says that his mother is ill and his brother and sister are still schooling.

Ms. Sukhdeo whilst opposing the appeal said that the appellant should have considered his personal circumstances before committing the offence. She said that the victim is a young girl and the sentence imposed is appropriate and is within the guidelines set out in the Court of Appeal Case of MOHAMMED KASIM and THE STATE (Civ. App. No. 21 of 1993). In fact she said that for this offence which is prevalent the appellant is lucky to get a sentence which is lenient. It was an aggravated form of rape. Today is the last day for the confirmation by the High Court of the recommendation of corporal punishment imposed on the appellant. The appellant is not a first offender as he has two previous convictions for which he was sent to prison but they are not akin to the present offence.

The appellant has committed a very serious offence against the victim who was 15 years 8 months old at the time of the offence. The circumstances in which it was committed is a matter of great concern. The victim had just got off her uncle's van at 5.30 p.m. on a country road and was walking towards her house when the appellant followed her and caught up with her. He grabbed her from the back, led her into a bush nearby, forced her to the ground and forcefully had sexual intercourse with her. She resisted and yelled out for help but the appellant warned and threatened her that he would kill her if she screamed. She became frightened. He left her there and ran away.

She then reported the matter to her parents and to police. In mitigation he told the Court:

"I do not know what came up to my mind and I raped her. I just did it. After raping, I realised that I had raped her. I seek Court's leniency. I am very sorry now for what I did to her."

Bearing in mind the circumstances in which the offence was committed and the serious and prevalent nature of the offence, whilst agreeing with all that the learned magistrate has said before passing sentence and what the learned State Counsel has submitted with which I wholly agree, I find that the appellant does not deserve any sympathy.

The sentence, except for the variation which I propose to make, is neither harsh and excessive nor wrong in principle. It is in accord with the sentencing guideline in rape cases as set out in the Court of Appeal case of KASIM (supra).

The appeal is partially allowed. I set aside the sentence and the recommendation for corporal punishment and substitute it with one of five and a half years' (5½) imprisonment.

D. Pathik
JUDGE

At Labasa
20 July 1998

Haa0026j.98b