Naidu v State [2010] FJHC 355; HAC009.2010 (20 August 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 9 OF 2010
CRIMINAL CASE NO: 344 of 2009

BETWEEN:

JOHN SAMUEL NAIDU
APPELLANT

AND:

STATE
RESPONDENT

Counsel: Mr. Lee - For the Appellant
Mr. Sovau - For the Respondent

Date of Hearing: 18 August 2010
Date of Sentencing: 20 August 2010

JUDGMENT

The appellant was convicted in the Labasa Magistrates' Court for the following offence.

Statement of Offence [a]

RAPE: Contrary to section 149 & 150 of Penal Code Cap. 17.

Particulars of Offence [b]

JOHN SAMUEL NAIDU on the 28th day of August, 2009 at Vunivere, Seaqaqa in the Northern Division had unlawful carnal knowledge of RAM DEI without her consent.

On his own plea of guilty appellant was convicted, and was sentenced to 10 years imprisonment. He appeals against the said conviction and sentence on the following grounds.

1. The sentence ordered by the trial court is too harsh and excessive in nature.
   
2. That the petitioner had only been convicted on his guilty plea, and that the summary of facts did not contain evidence of the offence charged for a safe conviction by the trial court.
   

Ground 1

The offence of Rape carries a maximum penalty of life imprisonment. Offence of Rape is a prevalent offence in Fiji. In this case the age of the victim is 78 years. She is a vulnerable member in the society.

In case of Drotini v State (2006) FJCA 26; AAU0001.2005S (24 march 2006) sentence of 11 years imprisonment, was affirmed for a rape of a step daughter.

In this case the victim is a 78 year old woman and it is a horrendous experience for a woman of that age, and is incapable of resisting such a sexual invasion. Therefore deterrent punishment is justified. The accused deserves much more severe punishment, but he was sentenced to 10 years imprisonment as it was the maximum punishment that the Magistrate Court could impose.

Therefore the 1st ground, that the punishment is too harsh and excessive, is without merit.

Ground 2

After the plea of guilty the learned Magistrate convicted the accused Appellant upon admitting the summary of facts. Summary of facts which the accused admitted are filed of record and it contains full facts and elements of the offence of Rape.

The counsel for appellant submitted that the accused did not understand the charge. The learned Magistrate has read and explained the charge to the accused, and the record shows that the accused understood the charge.

When the right to counsel was explained to accused, Appellant had said that he did not need Legal Aid assistance and that he would defend himself.

After pleading guilty to the charge he admitted the summary of facts. The learned Magistrate has followed the correct procedure in dealing with the unrepresented accused. The learned Magistrate was satisfied that the plea of guilty by appellant was unequivocal. I see no reason to interfere with the conviction and the sentence imposed by the learned Magistrate.

Hence appeal against the conviction and the sentence is dismissed.

Priyantha Fernando
Judge

At Labasa
20 August 2010