Senikudra v State [1988] FJLawRp 17; [1988] 34 FLR 114 (18 November 1988)

[1988] 34 FLR 114

HIGH COURT OF FIJI

Appellate Jurisdiction

PENI SENIKUDRA

v

THE STATE

Palmer, J.

18 November 1988

(Criminal Law - Rape - Plea of Guilty - appeal against sentence - consideration of appropriate punishment - guidelines adopted by Chief Justice - observations by appellate Judge on circumstances of crime of rape setting it apart from other crimes mitigation factors having already generously been taken into account, no further reduction justified).

Appellant In Person
J. Naigulevu for the Respondent.

Peni Senikudra appealed against a sentence of imprisonment for 3½ years for Rape.

The appellant and his niece attended a dance in his village. Afterwards he asked her to wait for a reason he gave. On the way home he raped her.

He pleaded guilty and was sentenced. The grounds of appeal included that there was no medical certificate to prove the complainant had suffered injury. Further it was argued that, on the advice of the Magistrate, he had reconciled with the complainants family in the traditional way by the presentation of tabua and he had pleaded guilty, neither of which factors had been taken into consideration. In passing sentence the learned Magistrate said:-

"It is noted that the accused had traditionally reconciled with the parents of the victim. I am of the view that the parents’ reconciliation should not be used by the accused to his own advantage. The victim is 19 years of age. Yet, the accused has four (4) children and is a very mature person who it would appear was under the influence of Indian hemp at the time of committing this offence. The offence is a very serious one and presentation of the Tabua wouldn't lessen the brutal experience that the victim had gone through. In my view all it did was to lessen tire period of custodial sentence of the accused which is warranted in cases as these. People shouldn't take advantage of the Fijian customs merely because it is to their own advantage as attempted by the accused in this instance. In view of plea of guilty and mitigation, you are sentenced to three years 6 months imprisonment for this offence."

The learned appellate Judge himself took evidence (Criminal Procedure Code 320) of the reconciliation. He noted the Magistrate had attached some weight to it. The Court referred to the guidelines offered by the Lord Chief Justice of England in Billam (1986) 82 Cr. App. R. 347 though to be considered in the light of the different circumstances of punishment in Fiji (See Ratu Waisea Waqanimolikula and others Criminal Appeals Nos. 11 and 12 of 1981). Billam was adopted by the Chief Justice in a Circular Memorandum issued by him in 1988. These Guidelines suggested a figure of 5 years as a starting point for an adult without aggravating or mitigating features in a contested case.

Held: It was not necessary that, to establish the commission of Rape there should be any specific or extensive injuries nor (semble) medical evidence. In any case the appellant had admitted his offence by pleading guilty. A medical certificate (not tendered but in the file) disclosed no aggravating elements of the offence.

The plea of guilty, appellant's expression of remorse and the reconciliation had been taken into account by the Magistrate.

The Judge commented-

"It has been said many times that Rape must attract severe sentences. The forcible invasion of a woman's body and the violation of her integrity as well as the aspect of frequent long lasting psychological damage requires this. These factors place the crime of rape in a different class from other crimes. The community looks to the Court for protection from this class of crime amongst others and those concerns may be answered by sentences containing a powerful deterrent element."

The sentence of 3¹/₂ years had taken generous account of the mitigating factors. Having regard to the above considerations no further reduction could be justified.

Appeal dismissed.

Cases Referred to:

Billam (1986) 82 Cr. App. R. 347.

Ratu Waisea Waqanimolikula and others, Cr. App. 11 and 12 1987.

PALMER, J.:

Judgment

This appellant was charged in the Magistrate's Court at Nausori with Rape contrary to Sections 149 and 150 of the Penal Code Cap. 17. He pleaded guilty on the 26th July 1985 and was convicted and sentenced to 3¹/₂ years imprisonment. The facts were that the appellant and the complainant, who is his niece, attended a dance in his village. Afterwards he asked her to wait as he wanted to enquire from her about another person. On the way home he raped the complainant.

The appellant appeals against his sentence substantially on the grounds that there was no medical certificate to prove that the complainant received any injuries and secondly that on the advice of the Magistrate the appellant had reconciled with the complainants faintly in the traditional way by the presentation of Tabua and that this had not been taken into consideration in the sentence. He also complained that his plea of guilty had not been taken into consideration.

Dealing first with the complaint about the medical evidence or absence therefore, it is of course not necessary in order to establish Rape that there should be any specific or extensive injuries. In any case the appellant admitted his offence by his plea. The record does not show that any medical evidence was tendered. However, a perusal of the files shows the existence of a medical report. According to this, the complainant complained to the Medical Officer both of the Rape and of a subsequent non-sexual assault by other people. The medical report notes the injuries found, which were of a rather minor nature, but does not, and perhaps could not, make any distinction between those non-sexual injuries caused by the Rape and those caused by the subsequent assault which is not part of these proceedings. The learned Magistrate made no reference to the injuries and I propose to ignore the medical report except for the purpose of noting that it discloses no aggravating elements of the offence.

As to the remaining grounds it is convenient to set out the learned Magistrate's judgment in full:

"Accused is convicted. It is noted that the accused had traditionally reconciled with the parents of the victim. I am of the view that the parents' reconciliation should not he used by the accused to his own advantage. The victim is 19 years of age. Yet, the accused has four (4) children and is a very mature person who it would appear was under the influence of Indian hemp at the time of committing this offence. The offence is a very serious one and presentation of the Tabua wouldn't lessen the brutal experience that the victim had gone through. In my view all it did was to lessen the period of custodial sentence of the accused which is warranted in cases as these. People shouldn't take advantage of the Fijian customs merely because it is to their own advantage as attempted by the accused in this instance. In view of plea of guilty and mitigation, you are sentenced to three years 6 months imprisonment for this offence."

It will be seen from this that the plea of guilty was taken into account. The record also shows that the appellant's expression or remorse was noted.

That leaves the question of reconciliation. In view of the learned Magistrate's observation about this and the fact that the record shows no evidence about it. I decided that I would take evidence myself pursuant to Section 320 of the Criminal Procedure Code. I wanted to inform myself as to the facts of this matter before determining the propriety or otherwise of the sentence. I heard evidence from the complaint’s father to the effect that he knew what the appellant had done to his daughter. When he went to Court the Court Clerk talked to him and mooted the idea of reconciliation. He said he must ask his daughter. She was present and advised him to accept the reconciliation. Subsequent to this there was a presentation of Tabua and other items by the appellant's two brothers and two other young melt. The appellant was not present; he may have been in custody. His daughter was not present either but told her father to accept the presentation on her behalf. He, the father, told the Magistrate before sentencing that there had been reconciliation. I have had some concern as to what weight if any should be given to this kind of reconciliation I believe that in circumstances such as the present, some weight should be attached to it.

I note that notwithstanding the deprecating remarks made about it by the learned Magistrate he clearly gave weight to the reconciliation in reducing what would otherwise have been the sentence. I do not believe that a further reduction is warranted. It has been said many times that Rape must attract severe sentences. The forcible invasion of a woman's body and the violation of her integrity as well as the aspect of frequent long lasting psychological damage require this. These factors place the crime of Rape in a different class from other crimes. The Community looks to the Court for protection from this class of crime among others and those concerns may be answered by sentences containing a powerful deterrent element. While every court has a wide discretion in the matter of sentencing it has become accepted that certain guidelines are necessary to provide consistency and general uniformity of sentences. The Lord Chief Justice of England laid down certain such guidelines in the matter of Keith Billam (1986)8 Cr. App. R. 347.

In Fiji in the matter of Ratu Waisea Waqanimolikula and Others, Criminal Appeals No.s 11 and 12 of 1987. Mr Justice Dyke said, with reference to this:

"It may be somewhat misleading to use standards adopted in another country. There may be different attitudes to different offences, and also for instance in the United Kingdom, corporal punishment has been abolished whereas in Fiji it remains for certain offences, Rape being one of them."

Furthermore, His Lordship went on to say that nevertheless the sort of sentences passed in the United Kingdom may he a useful guide. Since then, earlier this year, the guidelines in Billam's case were adopted in Fiji by a Circular Memorandum issued by His Lordship the Chief Justice. Those guidelines said that for rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case. The present case was not contested, there were no aggravating features, except possibly the family relationship between assailant and victim, and there were the factors of reconciliation and guilty plea. However, the light of these guidelines on the matter I am of the view that the sentence of 3¹/₂ years takes generous account of these mitigating factors and that hearing in mind the above stated considerations regarding this, offence. The Court cannot justify any further reduction in the sentence.

Accordingly, the Appeal is dismissed.

Appeal dismissed.