Koro v The State [2005] FJHC 563; HAA0101.2005L (8 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0101 OF 2005L

WAISEA KORO

v

THE STATE

Date of Hearing: 8 August 2005
Date of Judgment: 8 August 2005

Appellant in Person
Mr. S. Qica for the State

JUDGMENT ON APPEAL

The appellant was convicted by the Learned Magistrate at Rakiraki and sentenced to 3 years imprisonment on the 16^th February 2005 with respect to the following offence:

Statement of Offence

ATTEMPTED RAPE: Contrary to section 151 of the Penal Code, Cap. 17.

Particulars of Offence

WAISEA KORO, on the 21^st day of October 2004 at Nailuva Road, Ra in the Western Division, attempted to rape Masilina Macani.

You pleaded guilty before the Learned Magistrate and facts as presented to him were that on the 21^st October 2004 at about 7.30pm at Nailuva Village, Rakiraki, the complainant Masilina Macani, 19 years old, domestic duties went to pick groceries from a truck. That you, a 21 year old farmer of the same village who was drunk, went and hugged the complainant who pushed you away. You then followed the complainant, hugged her on the way to her house and the complainant’s aunty to you not to do such an act but you continued. At the complainant’s house, you asked the complainant’s mother for the complainant to company you to the truck to get your luggage. The complainant’s mother agreed and the complainant did not want to go with you but her mother insisted that she go and she did.

On the way to the truck, you got hold of the complainant’s hand. You did not have anything in the truck. The complainant asked you to go back. You pulled the complainant at the back of the truck and told her to accompany you to pick a bottle of methylated spirit under a mango tree, a 100 metres away. You then took out $20.00 from your pocket and gave it to the complainant. You asked the complainant to have sexual intercourse with you. The complainant refused. You punched the complainant on the face. You forced her down on the ground. You kissed her on the lips. She struggled to free herself and shouted for help. Her uncle came to her rescue then you ran away. The complainant received injuries from the punch and from barbwire which was beside the place where you forced her down on the ground.

The matter was reported to the police. She was medically examined with respect to the injuries that she had sustained and on arrest, you under caution interviewed, admitted the offence.

You submit to this court on your appeal that your family has extended a traditional apology to the complainant’s family and that has been accepted. You say that the penalty imposed upon you is excessive. You stay with your family and your family needs you. With respect to traditional apology, the Learned Magistrate took into account the decision of Mr. Justice Fatiaki, the now Chief Justice, in Viliame Saqa v The State – FLR 36 where he said:

“But it must be remembered that a crime is much more than a personal private matter between the victim and the offenders. It is a public wrong which must be punished in the public interest notwithstanding that parties may have reconciled.

The maximum penalty for the offence that you have committed is 10 years imprisonment. In Joji Punima v The State – HAC0033 of 2001, Madam Justice Shameem held that “for an offence of this type, an appropriate starting point is 4 years imprisonment” and she there imposed a period of imprisonment of 3 years where the accused pleaded guilty and there was no violence.

The Learned Magistrate when sentencing you used a starting point of 5 years imprisonment and made appropriate increases and reductions for the aggravation and mitigation. There were injuries to the complainant albeit not serious. You used force and lured her away to a private place.

In the light of the authorities, I am of the opinion that the sentence of the Learned Magistrate is not wrong in principle nor is it manifestly excessive and accordingly, the appeal is dismissed.

John Connors
JUDGE

At Lautoka
8 August 2005