Lagivou v State [2000] FJHC 193; HAA0039J.2000B (4 October 2000)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.HAA0039J OF 2000B

Between:

LEONE LAGIVOU
ISIMELI MUARUARUA
Appellants

And

THE STATE
Respondent

Appellants in Person
J. Rabuku for the State

Date of Hearing : 25 August 2000
Date of Decision : 4 October 2000

JUDGMENT

Leone Lagivou and Isimeli Muaruarua the appellants appeal against their conviction and sentence of five years imprisonment on 1 October 1999 by the learned Magistrate at Labasa for the offence of rape contrary to sections 149 and 150 of the Penal Code Cap.17. The appellants on 2 July 1998 had unlawful carnal knowledge of Vilimaina Makata at Saqani without her consent.

The appellants appeal against conviction and sentence on the following grounds:

1. The learned Magistrate erred in law and fact in convicting them having regard to the nature of evidence adduced at the trial;
   
2. The learned Magistrate erred in law and fact in imposing a sentence that is hard and unconscionable;
   
3. There was a material irregularity in the course of the trial;
   
4. Justice is entertained not merely for revenge but for the rehabilitation of the person concerned.
   

In relation to the first ground of appeal, the complainant’s sworn evidence appears on pages 21 to 25 of the court record. It is set out below for ease of reference because the appellants have chosen to impugn her testimony: Furthermore, it is given in a straightforward manner and the ingredients of the offence of rape are apparent from her testimony which the learned Magistrate close to believe:

“On 02/07/98 at 11.00 a.m. approximately at Saqani I went with a cousin to collect pandanus leaves. She is Losalini Lowadravu. It takes ten (10) minutes to walk to this place from home.

I met both accused going to Saqani village when I was going to collect pandanus leaves.

When I was making broom, I heard the 2 talking at about 12.30 p.m. to 1.00 p.m. I recognised the 2 to be Leone and Isimeli from the nearby village.

I know Isimeli in village as Taika. Others know him too as such.

Isimeli came to me and accused I Leone came nearby too. Leone called me. I was talking to Leone when Taika spoke to my cousin. I went near the other and when Leone followed me. Then we decided to go home. My cousin and I that is. We followed a track along main road. When we had gone a few metres, my cousin realised she had forgotten cane knife where we were making broom. Leone walked on the main road. He was full talking to me. He then pulled my “T” shirt. I did not like it. I walked back few metres. Then my cousin took lead home.

Leone was again pulling my “T” shirt so my pace was slouched down. Isimeli was bit behind Leone told me to stop and move no more. I yelled for my cousin but no reply. I kept on calling for help but no reply.

Leone removed my black cap. Then he covered my mouth with it.

Cap-Exhibit 1

Then he called Isimeli to come and pull my legs.

10/02/99

Prosecution-Constable Tasir

Accused 1-Present

Accused 2-Present

PW1 Vilimaina Maketa of Dogotuki, Domestic Duties

SWORN ON BIBLE IN FIJIAN

Then both of then forced me to the ground. Leone sat on my chest to stop me from getting up. Leone took the kitchen knife from me and told me to lie down. I was struggling and nothing to do this to me.

Kitchen knife -Exhibit 2

Isimeli held my right leg. I was wearing brown long pants, brown panty and a blue “T” shirt.

Brown Pants-Exhibit 3

Brown Panty-Exhibit 4

Blue “T” shirt -Exhibit 5

Second accused Isimeli pulled my pants down. He is also known as Taika. Leone at this time was still sitting on my chest. Only one side of my long pants was pulled down. I pulled my panty up. Leone then punched me on my hand. Leone still on my chest but moved to my neck. I was still suffocating and finding it hard to breathe. Black cap was put on my mouth by Leone. Isimeli got naked and came to my thighs. Taika was trying to force his erected penis into my private parts. I could feel his erect penis in my vagina on top area. He said to Leone that he cannot go through or cannot make it in Fijian language.

Isimeli lifted my right leg and told Leone to hold it. All this time Leone was sitting on top of the chest next to the neck.

Leone held one of my legs with one hand and the other hand was on the mouth. Then Isimeli forced in my vagina. I felt pain. I cried out. I was struggling to free myself.

Forceful intercourse lasted five (5) minutes with Isimeli. I kept on trying to struggle and free myself.

Isimeli stood down. Then I felt watery liquid in my vagina when Isimeli ejaculated. He stood up and Leone got close to my thighs. Leone lifted his hand from my mouth. I saw Isimeli near my chest. Leone went in between my legs. Isimeli was completely naked in broad daylight about 11.00 a.m. to 12 noon.

Leone undressed himself and Isimeli held a cap on my mouth. Leone put his penis in my vagina and began to do intercourse. I kicked Leone before he did unlawful sex with me. He told me to keep quiet and be still or else he will chop me with long knife lying near me. Leone’s erected penis entered my vagina and I felt it. He forced it into the vagina. I felt pain. I said no to him. He also ejaculated in 5 more minutes.

I was all naked on the ground. I heard someone call Leone and Isimeli. Leone stood up, wore his underwear and ran away with Isimeli. They took the knife with them. She also called me. It was Kinisimere. We all knew each very well. Blood had come out. I was a virgin. This was first time I had sex and it was forcefully done on me by the 2 accused.

I did not consent to what the 2 accused did to me. I told Losalini the same day what they did to me. Told the mother and aunty the next day the mother was in Labasa.

I on 07/07/99 reported to Police at Saqani Police Station. I was taken to hospital for medical examination. Dr filled medical report. I was examined first.

Exhibit 6 -Medical Report

The two boys who raped me today are in court. The raped me i.e. had unlawful sex with me without consent. I did not consent. They are both in accused box as accused 1 and 2.”

In a statement read out in court the second appellant cast doubt on the conduct of the trial and the nature of the evidence. First they queried the role of the learned trial Magistrate alleging that he compromised his impartiality by interfering with their cross-examination of the complainant. The court record speaks for itself. There is no suggestion that the court at first instance acted in the manner alleged. In the absence of any proof they must be disregarded. Doubt was also cast on the evidence of Losalini Lawadrau in that she heard the appellants threatening the complainant with a knife but did not hear her pleas for help when they were raping her. Howsoever, the learned Magistrate took into account the totality of the evidence, accepted the complainant’s version of events and concluded that the defendants were guilty beyond a reasonable doubt of the offence of rape. Before doing so he warned himself of the danger of convicting on the uncorroborated evidence of the complainant but nevertheless chose to believe her as he was entitled to do. Having done so, it must necessarily follow that he dismissed their claims that the sexual intercourse they had with the complainant was consensual.

The evidence of the complainant was not shaken in cross-examination and the elements of the offence of rape clearly made out. There was intercourse without consent and the appellants had actual knowledge that the complainant was not consenting or were determined to have intercourse with her whether she was consenting or not both factors being concurrent Ilaitia Korowiri v R Criminal Appeal No. 43 of 1979. Although she was not examined until five days later, the medical evidence suggests she had abrasions and injury on her vagina. That would be consistent with the forced sexual intercourse the appellants subjected her to. Moreover Kinisimere Caukula met the complainant within an hour or so of the rape. Her evidence is in part as follows:

“I called Vilimaina by name but no reply. It was by now 2.00 p.m. or 3.00 p.m. I began going back to my home. Then I saw Vilimaina walking home. She was crying. Pieces of leaves and dirt were entangled in her hair. Her clothes were messy. I met her. She said “Isimeli and Leone had sexual intercourse with me without my consent. I said no.” I told. This is what she told me first. She was in pain. I have no enmity with Leone or Isimeli. I know those 2 boys well. They are in accuseds’ box sitting next to each other. Leone is on my right. Isimeli on left in the box.”

Shortly before that she had seen the two appellants with the second appellant holding a knife. They had run off when she called them. Ms Caukula happened upon the appellants and the complainant within a short time of the rape. The complainant’s remarks to her and her appearance when related to the incident constitute recent complaint. In his decision the learned Magistrate referred to remarks the complainant made to her mother and aunt but in the court’s respectful opinion what she said to her cousin Kinisimere was more contemporaneous with the rape. These considerations reinforce the case against the appellants although in the result it was not necessary because the learned Magistrate chose to believe the complainant after warning himself about the danger of convicting on uncorroborated evidence. The first ground of appeal must therefore fail.

The second ground of appeal is without merit. The offence of rape carries a maximum of life imprisonment. The maximum sentence a Magistrate’s court can impose is five (5) years and he was perfectly entitled to impose such a sentence to reflect the seriousness with which society regards such crimes. Had the appellants been tried in the High Court, they would have received longer sentences consonant with their Lordships of the Court of Appeal’s guideline in Mohammed Kasim’s case.

The third ground of appeal relates to material irregularity in the course of the trial. The appellants referred in particular to the alleged victim’s clothes. They allege that they were not in the same condition as when they were on the date of the rape. There is no evidence for those unsubstantiated allegations. This ground is denied.

As regards the fourth ground of appeal the court accepts that the criminal law must punish as well as rehabilitate. The court has no wish to debate what ought to be the ideal mix. However there are circumstances in which one or other consideration will be given more weight. In the present situation, the appellants were deservedly punished. Had they pleaded guilty, the court at first instance may have been inclined to give them some credit for that. However they chose to put the complainant through the nightmare of reliving the trauma inflicted on her. This ground is also denied.

The appeal against sentence and conviction is accordingly dismissed.

Joni Madraiwiwi
PUISNE JUDGE

At Suva
4 October 2000