Sigaimata v State [1998] FJHC 63; Haa0013.1998 (30 April 1998)

Fiji Islands - Sigaimata v State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.13 OF 1998

BETWEEN:

SAIYASI SIGAIMATA
Appellant

AND:

STATERespondent

&>

Mr. A. Sen for the Appellant
Ms. Laisa Laveti for the State

JUDGMENT

On 9 February 1998 the appellant was on his own plea conv and sentenced to imprisonmisonment for 2 years of the offence of 2 counts of defilement contrary to s.156(1) (a) of the Penal Code at the Magistrate's Court, Labasa by the Resident Magistrate S.M. Shah Esquire.

The Appeal is against conviction and sentence.

The appellant is now represented by Mr. Sen. The Petition of Appeal was filed by him in person. He stated, inter alia, that the sentence was harsh and excessive. He is 26 years of age.

Mr. Sen submitted inter alia that the appellant was unrepresented and it was the duty of the learned Magistrate to draw the accused's attention to proviso to s.156(1) (a) of the Penal Code at the time when the plea was taken (AKUILA KUBOUTAWA and REGINAM Labasa Crim. App. No. 2 of 1975). There is nothing in the record to show that this was done. He further argued that evidence is insufficient as to the complainant's age (PECELI VIRIKI and REGINAM Crim. App. No. 79/72). No birth certificate was produced.

On sentence the learned Counsel for the appellant submitted that for a similar offence in Crim. Case No. 294/98 the accused was given 6 months sentence of imprisonment and in Crim. Case No. 281/96 a 24 year old accused was given 6 months sentence suspended for 6 months.

For these reasons Mr. Sen says that the appellant should be acquitted and released from Prison.

The learned Counsel for the State stated that if the Court decides on the proviso to s.156(1) (a) then she asks that the matter be remitted to the Magistrate's Court to be dealt with according to law.

I agree with the submissions made by Mr. Sen. Upon a careful reading of the record it is clear and I do so find that at the time the plea was taken the proviso s.156(1)(a) was not brought to the attention of this unrepresented accused. The said s.156(1)(a) under which the appellant was charged reads as follows:-

"156. - (1) Any person who -

(a) unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any girl being of or above the age of thirteen years and under the age of sixteen years; or

(b). . . ,

is guilty of a misdemeanour, and is liable to imprisonment for five years, with or without corporal punishment:

Provided that it shall be a sufficient defence to any charge under paragraph (a) if it shall be made to appear to the court before whom the charge shall be brought that the person so charged had reasonable cause to believe and did in fact believe that the girl was of or above the age of sixteen years.

(2)...

(3)..."

Failure to comply with the putting of the proviso to an accused has led to conviction being quashed and sentence set aside [Grant C.J.. in AKUILA (supra) ; THE STATE v SEREMAIA AMATO & 5 ORS Lab. Crim. App. No. 2/95 - delivered 10.2.95; MIKAELE BARI v R (supra) Lab. Cr. App. 11/75 Grant CJ].

In regard to the proviso I refer to the following passage (which should not be overlooked by Magistrates) from the judgment of Grant C.J. in AKUILA (supra unreported):

"... that in the case of an unrepresented accused any statutory defence should be brought to his attention. For instance, in a charge of this nature (viz Defilement), the accused should be informed that he is charged with unlawful carnal knowledge of a particular girl of a specific age and that he had no reasonable cause to believe that she was of or above the age of sixteen years; and the record should disclose that the charge was explained accordingly.

Since the question of insufficiency of evidence on the age of the complainant was raised, it is important for Magistrates to bear in mind the following statements of Grant C.J. in PECELI VIRIKI and REGINAM (Crim. App. 79/72):

"it would appear that neither a birth Certificate nor a medical certificate was tendered. It is an undesirable practice to accept as established by a plea of guilty facts which constitute an essential ingredient of the charge of which an accused way have no personal knowledge, such as the precise age of the girl in question, and for this reason a birth certificate or other satisfactory proof of the girl's age should be furnished. A medical certificate is desirable, not only to establish that sexual intercourse did in fact take place, but for the purpose of sentence it may well be relevant whether the girl in question was previously a virgin or was sexually experienced"

For these reasons the conviction is quashed and the sentence set aside and the appellant is released from Prison forthwith. It is ordered that the case be remitted to the Magistrate's Court, Labasa for a fresh plea and a rehearing before a different Magistrate. The appellant is bailed in the sum of $200.00 with one surety of like amount to appear before Magistrate's Court, Labasa on 8 June 1998 at 9.15 a.m.

D. Pathik
JUDGE

At Labasa
30 April 1998