Vosaman v The State [2004] FJHC 482; HBM0030.2004L (13 October 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HBM0030 OF 2004L

EMOSI VOSAMANA
Appellant

v.

THE STATE
Respondent

Mr. R. Gordon with Mr. D. Gordon for the appellant
Mr. N. Nand for the Respondent

Hearing: 8 October 2004
Ruling: 13 October 2004

RULING ON BAIL PENDING APPEAL

The appellant pleaded guilty and was convicted of rape by the Learned Magistrate at Rakiraki. On 15th September 2004, he was sentenced to 4 years imprisonment.

Statement of Offence

RAPE: Contrary to section 149 and 150 of the Penal Code, Cap. 17.

Particulars of Offence

EMORI VOSAMANA, on the 3^rd day of October 2003 at Rokovuaka, Ra in the Western Division, had unlawful carnal knowledge of SALOTE SAMURI, without her consent.

The appellant appeals the sentence and seeks bail pending the determination of the appeal.

The appellant first appeared before the Rakiraki Magistrates Court on 6^th October 2002 and entered a plea of not guilty. On the 8^th September 2004, the appellant pleaded guilty and the following facts were presented to the Learned Magistrate and admitted by the appellant.

The victim, 20 years of age of Rokovuaka village. The accused is a cousin of the victim of the same village. On 3^rd October 2003 between 5.30pm and 7.00pm, the victim was returning from Nabe settlement outside the village after delivering some fish to her brother. She followed the track back to the village and on the way, was confronted by the accused for sex. She refused. The accused then got hold of her, pulled her to the ground and undressed her, pulling her trousers and tearing her panties. The victim asked him to stop, she tried to yell and the accused covered her mouth with his hand. She struggled and started crying. The accused overpowered her and forcefully had sexual intercourse with her.

After the incident, the victim went to the village, reported the matter to her sister-in-law, as her mother was not home. Later her parents were advised.

The matter was reported the following morning and the victim was taken for medical examination at Rakiraki Hospital. She was examined by Dr. Joel and the medical report says there was positive signs of recent sexual intercourse.

The accused was then interviewed and charged. The accused family presented a “tabua” to the victim.

The appellant applied for bail to the Learned Magistrate after sentence and the application was refused on the basis that the Magistrates Court had no jurisdiction to consider bail at that time.

The matters for the consideration of the court are detailed in section 17(3) of the bail Act 2002 and:

(a) the likelihood of success in the appeal;
(b) the likely time before the appeal hearing;
(c) the proportion of the original sentence that will have been served when the appeal is heard.

The submissions of counsel for the appellant focused on the first of these considerations.

Relying on the decisions of Fatiaki J. in 1990 in State v Alipate Mocevakaca – FLR 36 p. 19, it is argued that the appellant should receive a suspended sentence as he has reconciled with the victim.

If this was ever good law, I do not believe it to be so after the decision of the Fiji Court of Appeal in Mohammed Kasim v The State – Crim. Appeal No. 14 of 1993 where at page 6 of the judgment, the court said:

“We consider that in any case without aggravating or mitigating features, the starting point for sentencing an adult should be a term of imprisonment of 7 years.”

The Learned Magistrate in a well reasoned judgment on sentence applied this starting point and reduced the sentence to 4 years after:

“Consideration was given for your plea of guilty, a first offender, so remorseful and that you had traditionally apologized for the wrong you did.”

All that is necessary: is to decide whether [the issues] show, on the face of it, that the appeal has every chance of success.” – Shandai Nand v The DPP – FCA 3/1979 – Marsack JA.

I think it is extremely unlikely that this court would find the sentence imposed by the Learned Magistrate to be manifestly excessive and therefore subject to review. The likelihood of success in the appeal is poor.

The appeal would be dealt with in this court within 3 months and therefore the proportion of the sentence that will have been served by the applicant is small.

The application for bail is refused.

JOHN CONNORS
JUDGE

At Lautoka
13 October 2004