Qerewaqa v State [2011] FJHC 41; HAA003.2011 (11 February 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No: HAA003 of 2011

BETWEEN:

VILIAME QEREWAQA
Appellant

AND:

THE STATE
Respondent

Counsel: Appellant in Person
Mr. T. Ravuniwa for State

Date of Hearing: 7 February 2011
Date of Judgment: 11 February 2011

JUDGMENT

[1] On 24 June 2010, the appellant was convicted of attempted rape on his own guilty plea and was sentenced to 3 years imprisonment with a non-parole period of 2½ years in the Magistrates' Court at Labasa.

[2] He filed an untimely appeal on 27 October 2010 blaming the Prison for delay in forwarding his appeal papers to the court registry.

[3] Since the delay is not substantial and the appellant is appearing in person, I grant him leave to appeal.

[4] The grounds of appeal are that the learned Magistrate failed to take into account that the victim was not assaulted and that the sentence is harsh and excessive.

[5] The facts were that the victim accompanied the appellant to his home upon his invitation. The victim was an adult. After having a meal together, the appellant suggested to the victim that they go to his bedroom. The victim refused. The appellant pulled and pushed her into his bedroom. He told her to lie on the mattress. While he was closing the bedroom door, she escaped by jumping out of the window. The appellant followed the victim and in the process tore her skirt and pulled off her top. The victim ran to the neighbour's house. The appellant went to the neighbour's house and returned the personal items that the victim left behind at his home.

[6] The medical report showed that the victim sustained abrasions on her knees and elbow while escaping through the window.

[7] Under caution the appellant confessed to the offence.

[8] At the time of the offence, the appellant was 33 years old and was employed as a security officer. He had a long list of previous convictions but none was for sexual assault. His last conviction was in 2005 for drunk and disorderly.

[9] The learned Magistrate considered the guideline case of Aunima v The State Criminal Appeal No. HAA033 of 2001 (27 June 2001) that held the tariff for attempted rape to be between 12 months to 5 years imprisonment. The higher end of the range is reserved for cases where the victim is subjected to serious sexual assault, while the lower end is for "borderline" indecent assault cases.

[10] In the present case, the learned Magistrate took the view that the offending was not of its worst kind. However, when picking up the starting point of 4 years, the learned Magistrate took into account the assault that was involved. The learned Magistrate did not make it clear which assault he was referring to when he picked up the starting point. The only conduct which could have amounted to an assault was the pulling and pushing of the victim. Otherwise, there was no evidence of any other assault on the victim by the appellant.

[11] Counsel for the State quite properly concedes that the assault involved was trivial and the learned Magistrate erred in selecting the higher side of the tariff. The victim was not subjected to physical violence. Minimum force was used when the victim was pulled and pushed by the appellant.

[12] The mitigating factors were the appellant's guilty plea, co-operation with the police and expression of remorse. The aggravating factors were that the victim got injured albeit not seriously and her clothes got torn, while escaping.

[13] In all circumstances, the sentence of 3 years imprisonment is excessive. The starting point should have been picked from the lower end of the tariff.

[14] I would have picked 2 years as my starting point, added 6 months for the aggravating factors and reduced 12 months for the mitigating factors.

[15] For these reasons, the sentence of 3 years imprisonment is set aside and a sentence of 18 months imprisonment is substituted.

[16] The appeal is allowed.

Daniel Goundar
JUDGE

At Labasa
11 February 2011

Solicitors:
Appellant in Person
Office of the Director of Public Prosecutions for State