Vudiniabola v The State [2004] FJHC 494; HAA0086.2004L (29 October 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0086OF 2004L

JOSEVA VUDINIABOLA
Appellant

v.

THE STATE
Respondent

Appellant in person
Mr. M. Korovou for the respondent.

Hearing & Judgment: 29 October 2004

EXTEMPORE JUDGMENT

The appellant appeared before the Nadi Magistrates Court on the 11th April 2003 and entered pleas of guilty to 5 counts, following which he was convicted and sentenced to terms of imprisonment which totaled 15 years when served consecutively.

FIRST COUNT

Statement of Offence

BURGLARY: Contrary to section 299 of the Penal Code, Cap. 17.

Particulars of Offence

JOSEVA VUDINIABOLA, on the 16^th day of March 2004, at Nadi in the Western Division, by night broke and entered into the dwelling house of SHARON FARRELL TREVILLION with intent to commit felony namely rape.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

JOSEVA VUDINIABOLA, on the 16^th day of March 2004, at Nadi in the Western Division, had carnal knowledge of SHARON FARRELL TREVILLION without her consent.

THIRD COUNT

Statement of Offence

UNNATURAL OFFENCE: Contrary to section 175(a) of the Penal Code, Cap. 17.

Particulars of Offence

JOSEVA VUDINIABOLA, on the 16^th day of March 2004, at Nadi in the Western Division, had carnal knowledge of SHARON FARRELL TREVILLION against the order of the nature.

FOURTH COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(a) of the Penal Code, Cap. 17.

Particulars of Offence

JOSEVA VUDINIABOLA, on the 16^th day of March 2004, at Nadi in the Western Division, armed with a nail robbed SHARON FARRELL TREVILLION of $360.00 in cash the property of the said SHARON FARRELL TREVILLION.

FIFTH COUNT

Statement of Offence

WRONGFUL CONFINEMENT: Contrary to section 256 of the Penal Code, Cap. 17.

Particulars of Offence

JOSEVA VUDINIABOLA, on the 16^th day of March 2004, at Nadi in the Western Division, wrongfully confined a woman namely SHARON FARRELL TREVILLION.

The appellant appeals against the sentence imposed by the Learned Magistrate.

The facts as presented to the Learned Magistrate and accepted by the appellant after then having been put to him in great detail by the magistrate are that on the 16^th March 2004 at 2300 hours in Nasoso at Kula Place, the accused entered the house of the victim. She was alone at her house at the time. She was about 48 years old, former actress from USA.

The accused hired a van from Nadi town and went to Nasoso. He stopped the motor vehicle only some distance from her house. He told the driver to wait. He entered the victim’s compound by climbing a fence. He then entered her house. At that time she was sleeping. Without saying anything to her, he began to have sexual intercourse with her. When she realized what was happening she yelled but he told her not to yell or else he would kill her. He told her to keep quiet. He threatened her with a 4-inch long nail. It was a sharp nail. He put the sharp nail on her neck and warned her continuously to keep quiet. He then told her that he loved her and wanted to make a baby from her.

In fear she did everything, which he told her to do. After raping her, he made her suck his penis and then inserted his penis in her anus. When he finished raping her, performing oral sex and doing unnatural sex, he told her to give money for beer. First he asked for $50.00 then $100.00. In fear she gave him $100.00. He still had 4-inch sharp nail in his hand. She took $100.00 from under a table lamp in the sitting room. He saw some more money there and he grabbed $360.00 against her wishes. She said to him not to take other money but he threatened her with a nail and took all. He grabbed the whole lot. Then he told her to accompany him to buy beer from a shop.

They both went in the same van to buy beer from nearby shop of Nagra. When he was getting off to buy beer, she began to yell that she had been raped and robbed and humiliated by the accused. The accused heard her yelling and ran into the bush in darkness.

Some members of the public chased him but could not catch him.

The matter was reported to the police and he was ultimately caught and interviewed by the police.

It was acknowledged that he was co-operative with the police at the time.

The appellant pleaded guilty at the first opportunity and told the court that he was a 25 year old, Air Pacific cleaner. He thought he saw another man in the room so he raped the victim to punish for not wanting him. He wanted her to be his girlfriend. He told the court that he was sorry, what he did was wrong and that he would not re-offend.

The Learned Magistrate in imposing sentences upon the appellant, sentenced him to 6 years imprisonment for the count of rape and 6 years imprisonment for the robbery with violence and lesser terms on the other offences and then made all terms consecutive resulting in a sentence of 15 years imprisonment.

All of the offences arise out of the one incident and there appears to be no basis for making the sentences consecutive.

The two dominant offences so far as penalty is concerned, are the offence of rape and the offence of robbery with violence. With respect to the offence of rape, the Court of Appeal in Mohammed Kasim v The State – Crim. App. No. 21 of 1993 said that a starting point for sentencing an adult should be a term of imprisonment of 7 years. To that 7 years of course has to be added the aggravation and has to be deducted any mitigation.

Certainly, when looking at the circumstances and the facts as acknowledged by the appellant in this matter, there is significant aggravation, which in my opinion warrants an increase to a term of 9 years.

With respect to the robbery with violence, the penalty by the Learned Magistrate of 6 years is probably not wrong in principle or manifestly excessive and accordingly does not need or warrant or enable this court to interfere with it and a similar comment applies to the other sentences imposed by the Learned Magistrate.

For the reasons stated above, the appeal is allowed in part with respect to the sentence imposed on the second count that is the count of rape where the sentence imposed by the Learned Magistrate is quashed and in lieu thereof, the appellant is sentenced to imprisonment for a term of 9 years.

The appeal is dismissed with respect to the sentences imposed by the Learned Magistrate with respect to the 1^st, 3^rd, 4^th and 5^th counts. However, the order of the magistrate that the sentences be served consecutively is quashed and in lieu thereof, the appellant is to serve all sentences concurrently, that is, a total of 9 years imprisonment.

JOHN CONNORS
JUDGE

At Lautoka
29 October 2004