Kevetibau v State [1992] FJLawRp 11; [1992] 38 FLR 110 (22 June 1992)

[1992] 38 FLR 110

HIGH COURT OF FIJI

Appellate Jurisdiction

RATU PENI BALEIDRAIBA KEVETIBAU

v

THE STATE

Jesuratnam J

22 June 1992

Sentence - non-reconcilable offences - duty of the Court to take into account de facto reconciliation when imposing sentence - Criminal Procedure Code (Cap 21) Section 163.

The Appellant was imprisoned by the Magistrates Court for a non- reconcilable offence. On appeal against the sentence the High Court HELD: the Magistrate had paid insufficient regard to the fact that the Appellant and the Complainant had reconciled.

No cases were cited.

Appeal against sentence imposed by the Magistrates Court.

Appellant in person
Ms. L. Laveti for the respondent

Jesuratnam J:

1n this case the accused was charged in the Magistrate's Court of Nausori with having broken into the house of Salote Naimawi with intent to commit a felony namely rape, on the said Salote on the 29th of December 1990, contrary to Section 302(1) of the Penal Code. The accused pleaded guilty and the learned Magistrate convicted him and sentenced him to imprisonment for a period of 2 years. The accused has appealed on the ground that the sentence is excessive.

This case brings to the fore the question of the extent to which the wishes of the complainant and the reconciliation of parties should be countenanced by a court in a criminal case. In thus case the complainant Salote Naimawi was present in Court and moved to withdraw the case as she stated that she and the accused had reconciled with each other and that they were related to each other. But the learned Magistrate had refused that application with the remark that this was not a reconcilable offence.

There are no reconcilable and non-reconcilable offences as such. What Section 163 of the Criminal Procedure Code (Cap. 21) does is to indicate that the Court should endeavour to promote reconciliation in the case of offences listed in that section. This is not such a case where the Magistrate is called upon to promote or initiate reconciliation. But there is nothing to prevent him from taking into account the wishes of a complainant in a fit and proper case - at least at the stage of sentencing.

It seems to me that this is such a matter which the learned Magistrate should have considered when he passed sentence. What the accused did on the night in question is certainly immoral and should be roundly condemned. He had gone to the house of the complainant with the obvious intention of having sex with her. However, there is nothing to indicate that the appellant used any force on her. On the other hand, when the complainant gave him a kick on his stomach (which he richly deserved) he fled from the house. He made no attempt to persist in his efforts. It is probably on a reflection of all these circumstances that the complainant decided to withdraw her complaint.

In the outline of facts there does not appear to be any suggestion that force was used on the complainant.

Learned state counsel points out that in the complainant's statement to the Police she had said that she found seminal stains on the bedsheet. One does not know how they came to be there. There are all sorts of perverts and psychopaths who derive sexual satisfaction in various ways. In any case that was not a factor in the outline of the case for the prosecution which the appellant accepted. It seems to me that in the circumstances of this case the learned Magistrate should have taken the wishes of the complainant into consideration in sentencing. If indeed it was considered necessary that the appellant should undergo an immediate custodial sentence it should have been for a short period. It is my view that the nature and circumstances of the offence should be taken into consideration at the stage of sentencing when parties have reconciled.

The appellant has already served 11 months in prison which with the necessary remission is equivalent to a term of imprisonment for over 15 months. I therefore set aside the sentence of imprisonment for 2 years and substitute therefor a term of imprisonment for 15 months.

(Appeal allowed; sentence varied.)