Boladuadua v State [2009] FJHC 12; HAA112.2008 (23 January 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 112 of 2008

Between:

KOROI BOLADUADUA
Appellant

And:

THE STATE
Respondent

Hearing: 16th January 2009
Judgment: 23rd January 2009

Counsel: Appellant in person
Mr. S. Qica for State

JUDGMENT

[1] The Appellant appeals against conviction and sentence on one count of rape and one count of indecent assault. The grounds of appeal are that the learned Magistrate did not explain the proceedings to the Appellant, that the Appellant was prejudiced by lack of representation, that the facts outlined by the prosecution did not disclose the offences and that the sentences imposed were harsh and excessive. The State opposes the appeal, saying that the plea was unequivocal and the sentence, if anything, was lenient for the rape and sexual assault of children.

[2] In CF108/08, the Appellant was charged with rape. It was alleged that on the 7th of February 2008, at Naikawaga, Nausori, he had unlawful carnal knowledge of Mere Naitube without her consent. The case was called on the 21st of February 2008 in the Nausori Magistrates’ Court. The Appellant told the court that he intended to instruct counsel. When the charge was read and explained however, he pleaded guilty. He was again advised to get a solicitor either privately or at the Legal Aid Commission. The matter was then adjourned to the 6th of March 2008. The Appellant was remanded in custody.

[3] On the 6th of March, he waived his right to counsel and the sentencing hearing proceeded. The facts were that the father of Mere Naitube died in March 2004. She had one sister and two brothers. The Appellant commenced a de facto relationship with their mother, moving in to live with the family. According to the facts, he began to ill-treat the children so that they lived in fear of him. On the 7th of March the Appellant told Mere, who was then 15 years old to go with him to the sea. Later on the same day, she went to take a bath in a nearby creek. She was accompanied by the Appellant. He then went down on her and tried to put his erected penis into her vagina, covering her mouth to stop her screaming. The incident was witnessed by a 30 year old farmer Pauliasi Vatunalaba who warned the Appellant about his conduct.

[4] The matter was reported to the police and the Appellant was questioned and he admitted raping the victim on a total of six previous occasions. He was charged on one count of rape. These facts were admitted by the Appellant. He was a first offender. The tendered medical report of the victim showed that she had bruises on her legs consistent with assault, that her hymen was not intact and there was a foul-smelling vaginal discharge. The doctor found that: "This child has definitely been sexually assaulted and has bruise marks on her body indicating that she has been beaten." The history related to the doctor by the victim was that her stepfather had been sexually assaulting her since the 4th of February 2008.

[5] In mitigation the Appellant said he was 48 years old, in a de facto relationship with the mother of the victim. He said that the incident was a mistake and that because it had occurred on a weekend he could not control himself. He expressed remorse.

[6] In CF109/08, the Appellant was charged with indecently assaulting his other stepdaughter Melina Marama. The charge states that between the 1st of October 2007 and the 30th of November 2007 at Naikawaga, Nausori he unlawfully and indecently assaulted Melina Marama. She was then 13 years old.

[7] The case was called on the 21st of February 2008 and the Appellant pleaded guilty. On the 6th of March he waived his right to counsel. The facts outlined were that on a day in October or November 2007, the victim was alone at home with the Appellant. He called her to his bedroom to massage his leg. During the massage he put his hand under the neck of her dress and fondled her breasts. Her sister and brothers then returned home and the Appellant told her to go away and not to tell anyone what had occurred. She did not tell anyone until the 19th of February 2008 when she was questioned about it. Under caution, the Appellant admitted the offence.

The appeal

[8] The Appellant’s main ground of appeal is that his plea of guilty should not have been accepted because he did not understand the nature of the offence. There is nothing in the court record to suggest that he did not understand the nature of the offences or the facts outlined by the prosecution. However, the facts outlined did not disclose a rape, only an attempted rape. They read: "offender then made victim lie facing upwards on the rocks and he pulled down his own underwear. He spread victim’s legs and went down on her and victim felt his erected penis on her vagina as he tried to insert his penis into her vagina. Victim tried to scream but offender covered her mouth with his hand. Later on the offender was disturbed when his dog barks at one Pauliasi Vatunalaba ...." These facts are consistent with the medical report which states that the history related was that of "sexual assault." At paragraph A4 of the medical report (which regrettably is not part of the court record although it was tendered at the hearing) the doctor has reported: "she alleges that her stepfather, namely Koroi, sexually abused her two weeks ago and attempted to rape her." (my emphasis). The facts disclosed not a rape, but an attempted rape on the 7th of March 2008. Further, the fact that the Appellant admitted previous rapes, prior to the 7th of March is irrelevant. He was not charged with them.

[9] The facts disclosed lack of consent, and a knowledge of lack of consent, but they did not disclose penetration, only acts which were overt in relation to penetration by the penis of the vagina. The conviction in CF108/08 is unsafe. In his sentencing remarks the learned Magistrate said that "you ... insert your erected penis into her vagina." But this is not what the facts were. The conviction for rape must be quashed and a rehearing must be ordered on the basis of a charge of attempted rape. Indeed, once the ambiguity arose on the facts disclosed in the Magistrates’ Court, the learned Magistrate should have set aside the guilty plea and either asked the prosecution to lay a fresh charge of attempted rape, or to proceed to trial on the rape charge. Such a procedure allows the accused to prepare a defence to the new charge or the old one.

[10] In relation to CF109/08 there is no ambiguity. The facts disclose an indecent assault on the Appellant’s stepdaughter. In relation to this conviction (which the Appellant accepts was correctly entered), the learned Magistrate found that there was a breach of trust and a particularly vulnerable victim. He sentenced the Appellant to 12 months imprisonment. This sentence is correct in principle and neither harsh nor excessive. It is within the tariff for indecent assault and the sentence took into account the vulnerability of the victim. The court also took into account the guilty plea.

Result

[11] The conviction for rape on CF108/08 is quashed. I order a rehearing on the basis of a charge of either attempted rape or rape if the prosecution has additional evidence of penetration. The conviction and sentence in CF109/08 for indecent assault is upheld. The appeal partially succeeds.

Nazhat Shameem
JUDGE

At Suva
23rd January 2009