Mateni v The State [1998] FJHC 111; Haa0018.1998 (21 July 1998)

Fiji Islands - Mateni v State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.18 OF 1998

BETW>BETWEEN:

ERI MATENI
Appellant

AND:

STATE
Respondent

Appellanterson
Mbr> Ms. Laisa Laveti for the State

JUDGMENT

This is an appeal against conviction and sentence.

The appellant was on 10 February 1998 convicted of the offence of rape contrary to s.149 of the Penal Code Cap.17 and was sentenced to imprisonment for five years.

The Particulars of Offence reads:

ERI MATENI, between the 3rd day of January, 1998 and the 4th day of January 1998 at Dogotuki in the Northern Division, had unlawful carnal knowledge of a woman namely MARIA USENIA without her consent.

Before the hearing commenced the appellant applied to add a further ground of appeal, namely, "that I did not rape the girl. What I did was with consent of the girl".

He said that he has a letter from the 'girl 'and that she is outside the Court. He applied to call her to say that he "did not rape her". He admitted to this Court that she gave evidence and that he cross-examined her. The application to call her was refused as her evidence is already before the Court as can be seen from the record.

Appellant's submission

The appellant addressed the Court on the grounds of appeal filed by him.

On ground 1 he said that the 'girl' told him that before this she had been out with "another boy" and then he "went". He said that may be the previous injury was through that. On ground 2 he said that it was not her intention to report but she was threatened by her grandfather who slapped her outside the Court the day of the hearing of the case. On ground 3 he said he gave a letter to Court in which she stated that she consented but the magistrate ignored it.

He concluded by saying that he is a first offender; he is married with 4 children and there is no one to support them. He said that he was ‘threatened’, by the magistrate that he can 'put me in for 7 or 9 years' and he became frightened and he did not know what he was saying.

On sentence he submitted that it is harsh and excessive.

State's submission

The learned State Counsel opposed the appeal. She said that the complainant is the step-daughter of the appellant and she regarded him as her father. She has been in his custody since she was 4 years old when the appellant married her mother. She was 18 years of age at time of trial (p. 16 of record). The appellant pleaded not guilty and there was a trial when the complainant testified and outlined the incident to Court and was cross-examined (p.11-15 of record). She was adamant that she was raped twice by the appellant. The grandparents testified and they were hardly cross-examined. The appellant tried to interfere with witnesses wanting them to withdraw the case.

Ms. Laveti submitted that the learned Magistrate in a very thorough judgment found the accused guilty and convicted him. She said that 5 years is within the guidelines and the maximum within the Magistrate's Court's jurisdiction. The conviction and sentence are justified.

Consideration of appeal

(i) On Conviction

I have heard the appellant in this regard and have perused the record very carefully. It is abundantly clear that the charge against the appellant had been proved. The complainant was cross-examined in regard to the material particulars and had not been shaken in cross-examination. He wanted her to withdraw the case (p. 15 of Record). The complainant reported the incident to her grandmother (PW2) and she gave an account of what the complainant narrated to her. The grandfather (PW3) who also testified was not cross-examined at all. The P.W.4 a physician who examined her testified that the 'vagina' was painful and "this consistent with recent intercourse". The PW5, the investigating Officer was not cross-examined at all. In his own evidence when cross-examined he admitted having sex with her.

All in all the evidence against the appellant is so overwhelming that the learned Magistrate could not have come to any other conclusion but that the appellant was guilty of the offence of rape as charged. I therefore find that the appellant was properly convicted of the offence.

(ii) On sentence

The appellant says that the sentence of five years is harsh and excessive. He is the complainant's step-father; she has been in his care and custody since she was four our years old.

The appellant stands convicted of a very serious offence which is quite prevalent. It carries a maximum of life imprisonment. The Court ought to and are now taking a very serious view when it comes to sentencing in rape cases and other related offences. As has been done in this case, time is ripe for Magistrates to exercise their jurisdiction by imposing the maximum sentence in their power in rape cases.

The Fiji Court of Appeal has given certain guidelines with the starting point of seven years without aggravating or mitigating features in MOHAMMED KASIM and THE STATE (Civ. App. No. 21 of 1993) where it is stated:

"While it is undoubted that the gravity of rape cases will differ widely depending on all the circumstances, we think the time has come for this Court to give a clear guidance to the Courts in Fiji generally on this matter. We consider that in any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment of seven years. It must be recognized by the Courts that the crime of rape has become altogether too frequent and that the sentences imposed by the Courts for that crime must more nearly reflect the understandable public outrage. We must stress, however, that the particular circumstances of a case will mean that there are cases where the proper sentence may be substantially higher or substantially lower than that starting point".

The sentence in the case before me is hardly harsh and excessive for a man of such advanced age on his stepdaughter who is a teenager. I have no sympathy whatsoever for people like him who commit such offences.

The fundamental purpose of the criminal law is to protect the community. This can be done by making the punishment fit the offence and the offender thereby promoting respect in the community for the justice of the criminal law. Hence the need for the courts to have regard to the need for general deterrence.

The offence that the appellant has committed and for which he stands convicted by the learned Magistrate is so heinous that the fact that the crime was a first offence or that he had not been to prison before are of little relevance as the guidelines in KASIM (supra) indicate.

The appellant by his act has ruined his step-daughter's life who is in her teens. She needed his protection and least expected him, as is evident from her evidence, to stoop so low and intrude into her privacy.

Looking at the circumstances surrounding this offence involving his step-daughter qualifies him to be put away from society for a longer period than 5 years. With the rapid increase in the offence of rape I echo the remarks (how true they are even today) of GRANT C.J. in REGINA v PETER0 RAVUCI (Review No. 13 of 1977) which was a case of alleged rape of an 8 1/2 year old girl (which can be applied in this case) when he said:

". . . . . in the circumstance therefore it is essential that the Courts provide a real deterrent otherwise rape will continue to menace the women of Fiji. In R v RINO BANATI (Review No. 47 of 1976), this Court stated that "it is high time that Magistrates gave serious consideration to the exercise of their full powers in appropriate case", and I repeat this with emphasis."

Today we have KASIM (supra) as a guide in sentencing in addition to the powers that Magistrates have under the Penal Code.

The sentence of 5 years imposed on the appellant is neither harsh nor excessive nor wrong in principle. Bearing in mind all the circumstances of this case and more so the young age of the victim, the fact that there are no mitigating factors, I will enhance his sentence by setting aside the five year sentence and substituting it with one of 6 years. The appellant has the right of appeal.

The appeal against conviction and sentence is dismissed.

D. Pathik
JUDGE

At Labasa
21 July 1998