Kaverevere v The State [2002] FJHC 133; HAA0053.2002 (4 July 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA0053 OF 2002
{ Suva Magistrate’s Court Crim. Case No.: 919 of 2002 }

BETWEEN:

NEMANI KAVEREVERE a.k.a.
NEMANI BULI VUARUA
Appellant

AND:

THE STATE
Respondent

Appellant - In Person
Respondent - Mr. N Nand

JUDGMENT

On 22^nd April 2002 the appellant was convicted on his own plea of guilty by the Suva Magistrate’s Court of the offence of ATTEMPTED RAPE and sentenced to three years imprisonment.

Statement of Offence

ATTEMPTED RAPE: Contrary to Section 151 of the Penal Code, Act 17.

Particulars of Offence

NEMANI KAVEREVERE, alias NEMANI BULIVUARUA KAVEREVERE between the 10^th day of April, 2002 and 11^th day of April 2002 at Lami in the Central Division, attempted to have unlawful carnal knowledge of a women namely [the complainant] without her consent.

The appellant in person appeals against the sentence and while it is difficult to make sense out of the filed grounds, it appears that the grounds are:

1. that the police conspired to charge him of attempted rape.
   
2. that he was wrongly charged because his intention was only to break into complainant’s house.
   

It was alleged by the prosecution in the outline of facts that between 10.00 p.m. of 10^th April 2002 to 1.00 a.m. on 11^th April 2002, complainant who is 45 years old was alone at her flat at Lami. She heard a dog barking so she opened her door to check. As soon as she opened her door, the appellant rushed in with a kitchen knife and put it on her neck. He demanded for money and as she had no money, she gave her wedding ring and watch to the appellant.

The accused saw that the complainant was wearing her nightclothes so he pushed her on the bed and lay on top of her. He tried to have sexual intercourse with her but could not penetrate as he could not get an erection. He licked complainant’s private parts and fondled her breasts and again unsuccessfully tried to have sex.

The complainant reported matter to police.

Except for the fact that he was carrying a knife, the appellant admitted other facts, which the learned Chief Magistrate ruled were quite sufficient to prove attempted rape.

In mitigation the appellant inter alia said "I was drunk at the time. I used to drink near complainant’s house. I went past the complainant’s room. The light was on. She was naked. I was tempted".

There cannot be a clearer case of unequivocal plea of guilty than this and really this appeal should not be allowed in terms of Section 309 of the Criminal Procedure Code. I could have disposed of the matter here.

However, since the appellant was not represented, I will briefly consider his argument that there was no attempt to rape. His intention was only to break into the house.

The word ‘attempt’ is defined in Section 380 of the Penal Code as follows:

"Where a person, intending to commit an offence, begins to put his intentions into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.

It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.

It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence."

The intent of accused is same in rape as in attempted rape. That intent is to have sexual intercourse together with knowledge or recklessness as to the absence of consent – R. v. Khan 1990 2 All E.R. 783.

In the present case there were a number of overt acts which went beyond the mere preparatory stage and which show that he had begun to execute his intention. These are that the appellant had –

1. pushed the complainant onto a bed
2. he lay on top of her
3. he tried to have sex with her but could not as he could not get an erection
4. he licked her private parts and fondled her breasts
5. he again lay on top of her to have sex.
   

In short he tried to have sex twice but failed to penetrate.

In Epironi Levukaiciwa & Others v. The State - Crim. Appeal HAA0087 of 2001 unreported judgment of Justice Nazhat Shameem the accused lay on top of the complainant to have sex. He still had his clothes on and when the complainant pleaded with him he stopped and did not take his clothes off. In dealing with this issue of attempt she commented:

"Section 380 makes it clear that a man is guilty of an attempted rape when, with the intention to rape, he does an overt act, and the fact that he changed his mind, or he was prevented from completing the offence by independent circumstances, is irrelevant to his conviction."

In the present case there are a series of admitted overt acts as stated above on the basis of which the learned Magistrate was quite correct in convicting the appellant of attempted rape.

The appellant also complains of severity of sentence. He says three years is excessive sentence. The only mitigating factor is the guilty plea thereby saving court’s time.

There are a number of aggravating features to this case. There was violence used by the appellant. The injuries may not be serious but they are multiple as shown by the medical report. There were abrasions on the right and left side of lower jaw, abrasion on left hand and under the wedding ring, abrasions on the left thigh and right thigh.

There were two attempts to rape. The complainant is aged 45 and was alone at home and therefore vulnerable. The incident occurred at night inside complainant’s house. The appellant had forced himself into the privacy of complainant’s home and subjected her to indignities in her own home. The appellant has a string of previous convictions since 1996. He is an annual visitor to the courts and not a first offender.

The learned Magistrate in his sentencing approach looked at the maximum penalty, considered the starting point of five years, looked at the mitigating factors and sentenced the accused to three years imprisonment.

This was a very serious case of attempted rape and the sentence of three years imprisonment was quite proper and may have been a bit lenient. Appeal against conviction and sentence is dismissed.

{ JITEN SINGH }
JUDGE

AT SUVA
4^TH JULY 2002