Aunima v The State [2001] FJHC 105; HAC0033J.2001s (27 June 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 033 OF 2001

BETWEEN:

JIOJI AUNIMA
Appellant

AND:

THE STATE
Respondent

Mr N. Shivam for Appellant
Ms S. Shah for Respondent

Hearing: 22^nd June 2001
Judgment: 27^th June 2001

JUDGMENT

This is an appeal against sentence, in respect of a term of three years and four months imprisonment imposed on the Appellant for the following charge:

Statement of Offence

ATTEMPTED RAPE: contrary for Section 151 of the Penal Code, Act 17.

Particulars of Offence

JIOJI AUNIMA on the 16^th day of March, 2001 at Nasinu in the Central Division, attempted to have unlawful carnal knowledge of RAIJIELI AKANISI without her consent.

The appeal was against conviction and sentence, but at the hearing of the appeal, counsel proceeded with the appeal against sentence only.

The facts of the case, as outlined by the prosecution were that on the 16^th of March 2001 at about 7.30pm, the victim was on her way to visit her cousin when she met the Appellant. He told her he know of a pastor on Khalsa Road, who sold second-hand clothes. She accompanied him, and when they passed a vacant house, the Appellant grabbed her, and forced her to lie on the ground. He then pulled her panties down to her knees. She yelled out, and a Fijian man passing by, came to her rescue. He took the Appellant to the police station where he admitted committing the offence.

These facts were admitted by the Appellant in the Magistrate’s Court and he was convicted as charged.

In mitigation he said he was 25 years old, married, had one son and was employed as a carpenter at Falekau Industries. He expressed remorse and asked for a non custodial sentence. He has one previous conviction on 22^nd October 1996, for larceny.

In his sentence remarks the learned Magistrate said the maximum sentence for Attempted Rape was 7 years imprisonment and that the starting point should therefore be 5 years imprisonment. The Appellant was given one-third discount for the guilty plea and the sentence passed was therefore three years and four months imprisonment.

At the hearing of this appeal, Counsel for the Appellant submitted that the starting point of five years imprisonment was wrong in principle. He said that the tariff for attempted rape in Fiji was considerable less than five years and suggested that the correct starting point should have been twenty-one months as it was in Vereniki Marawa –v- The State Criminal Appeal No. 018 of 1998.

State Counsel opposed the appeal saying that Vereniki Marawa (supra) was distinguishable, and that because this was a serious case of Attempted Rape, the starting point of five years imprisonment was right in principle.

A tariff sentence is usually passed where the court recognises the need to deterrent sentence. The range of sentences that make up the tariff for a particular offence, is usually determined by the courts. The maximum statutory sentence is not always a good indication of what the tariff might be, because the legislature often sets a statutory maximum far in excess of an appropriate term, in order to give the court a wide discretion for sentencing. In most case, the statutory maximum sentence would only be appropriate for the worst type of offending.

The range of sentence which indicate the tariff is easily discernable from the reported cases for a particular type of offending. The decision for the sentence is then to decide on the appropriate starting point. D.A. Thomas "Principles of Sentencing" says (at page 38):

"This process is governed primarily by concepts of proportion, the relative seriousness of the offence as an instance of its kind, and arguments based on deterrence are not permitted to override this factor. What may be considered the average offence of its kind is place near the middle of the range; as in the case of statutory maxima, room must be left within the effective range to deal with the most serious examples likely to be encountered."

In the absence of guideline judgments which set out the tariff for particular types of offending, it is not always easy to recognize the tariff established by the courts. This is because, much of the sentencing, which is done in the Magistrate’s Courts, is not always available to the High Court or the Court of Appeal. In this case both counsel have submitted those authorities they were able to obtain and they are useful as an indication of a tariff for Attempted Rape.

In Vereniki Marawa –v- The State (supra) Surman J quashed a suspended sentence passed by a magistrate, on appeal by the State and substituted a term of twelve months imprisonment. He adopted a starting point of twenty-one months imprisonment, saying that the case was not the most serious of its kind. Indeed in outlining the facts, which were that the accused had accosted and 18 year old girl, pressed her neck, pulled down his pants said he wanted to have sex with her, his Lordship said that the case was really a "borderline case" of Attempted Rape. He said it was arguable that the accused should really have been charged with indecent Assault.

In Latchman Prasad Sharma –v- The State Criminal Appeal No. 0027 of 1997, Pain J considered a sentence of 4 years imprisonment for Attempted Rape, after a defending hearing. The evidence was that the victim was 12 years old, the Appellant had tried to penetrate her vagina but could not, and he performed other degrading acts on her. There was an element of breach of trust and some subterfuge employed by the Appellant. He had previous convictions for similar offences. Pain J refused to reduce the sentence, saying, at page 6:

"Substantial prison sentences are common for this offence. Sentence of 3 ½ years imprisonment have been confirmed in this court in Epeli Ratabacaca –v- The State (Crim. App. No. 106 of 1991) and Watisoni Davui –v- The State (Crim. App. No. 10 of 1997)".

In Watisoni Davui –v- The State (supra) the Appellant had punched the victim, taken her to a cassava patch, thrown her to the ground, assaulted her again and pulled down her pants before getting on top of her. He was sentenced, after a defended hearing to 3 ½ years imprisonment. Pain J upheld the sentence saying there was only a fine line between the attempt and the completed offence. He said that 3 ½ years imprisonment was within the acceptable range.

In Epeli Ratabacaca –v- The State (supra) a sentence of 3 ½ years imprisonment for Attempted Rape was upheld by Jayaratne J on appeal from a defended hearing. The facts of the case are not set out in the judgment, but the charge was originally one of Rape, and the Appellant was a first offender.

Counsel also referred to English authorities on sentences for Attempted Rape. However, the tariff in England is not strictly comparable because the statutory maximum sentence for Attempted Rape is life imprisonment under section 3 (Schedule 2, para 1(a)) of the Sexual Offences Act 1985.

However, the guidelines issued by the Court of Appeal in R -v- Billam 82 Cr. App. R. 347 are helpful as to what factors may constitute aggravating or mitigation factors. Aggravating factors are:

1. Violence used over and above the force necessary to commit the offence;
2. The use of weapons;
3. Repeated rapes
4. Planning
5. Previous convictions for sexual offences;
6. The victim was subjected to further sexual indignities;
7. The victim was very old or very young;
8. The trauma suffered and the effect on the victim was especially serious.
   

Mitigation features include:

1. Previous good character;
2. Guilty plea.
   

It was held in Billam that the starting point for Attempted Rape should normally be less that for the completed offence, especially if the offender was stopped at an early stage. However in some cases, the sentence for Attempted Rape could be heavier that some examples of the completed offence.

Thus in R –v- Behich (1986) 8 Cr. App. R(s) 387 a sentence of seven years imprisonment for Attempted Rape was upheld where there was a serious degree of violence. In R –v- Williams (1987) 9 Cr. App. R(s) 491, on facts similar to this case before me, a sentence of five years imprisonment was reduced to four years.

Applying all these principles, I find that the accepted tariff for Attempted Rape in the Fiji Courts ranges from 12 months imprisonment to 5 years imprisonment. A starting point should then be chosen according to the seriousness of the offending.

In the case before me, a starting point of 5 years imprisonment was not appropriate. This was not the most serious offence of its kind. There was no evidence of injuries, extreme youth or age of the victim, or of the use of weapons or gratuitous violence. However, it was clearly not the least serious of its kind, which might have justified the lowest starting point. The Appellant used subterfuge to lure the victim to a vacant house, he deliberately referred to a pastor to gain her confidence, he would have completed the offence if he had not been disturbed, and he used force to get the victim to lei down pulling her panties down to her knees. This was not a "borderline" indecent assault.

As such I consider a starting point of 4 years imprisonment to be appropriate. The Appellant was entitled to a reduction for his guilty plea of one year, but was not entitled to any further reduction for good character. In all the circumstances, I consider a sentence of 3 years imprisonment to be appropriate.

The sentence of 3 years and 4 months imprisonment is quashed and substituted with a term of 3 years imprisonment.

The appeal is successful to that extent.

Nazhat Shameem
JUDGE

At Suva
27^th June 2001

HAC0033J.01S