Mototabua v State [2001] FJLawRp 21; [2001] 1 FLR 98 (2 March 2001)

ELIKI MOTOTABUA v STATE

High Court Criminal Appellate Jurisdiction

9, 23 February, 2 March, 2001

HAA044/00L

Attempted rape - appeal against sentence – sentence within tariff - wider purpose of sentencing for criminal attempts: retribution, denunciation, general deterrence, individual deterrence, rehabilitation and incapacitation – Appellant attempted penetration of victim's vagina but stopped when she felt pain - Appellant's wish to continue with education - Penal Code ss151, 380

The Appellant was represented by counsel, was tried and convicted of attempted rape and sentenced to 3½ years imprisonment. The Appellant's sworn evidence showed he tried to penetrate the complainant's vagina but stopped when the victim felt pain. Prosecution presented evidence that when the Appellant failed to penetrate the victim, the victim suggested a change of position and the victim took that opportunity to escape. He appeared unrepresented at the appellate court, and appealed against conviction and sentence, but at the hearing indicated he would appeal against sentence only.

Held – The sentence of 3½ years imposed on the Appellant was within the tariff for such offences, on the authorities cited. Although the sentencing magistrate identified two principles for justification of punishing criminal attempts, the wider purpose of sentencing needs to be considered. These are well known and include: retribution, denunciation, general deterrence, individual deterrence, rehabilitation and incapacitation. In the circumstances, considering the Appellant's wish to continue with his education, his youth and his consideration of pain to the victim to desist, leniency is shown.

Tiare Bobo v State [1999] HAA 0049/99B Judgment 23 August 1999 appl.

Sentence of 3½ years reduced to 1 year 9 months.

[Note: On appeal, conviction and sentence in relation to count 2 quashed as information did not state the specific mens rea required under s251 Penal Code. Appellant's submission that all other charges be quashed is not sustainable. No corroboration is required in law on abduction charge but in fact corroboration was present. There is no statutory requirement for corroboration in a rape case. The rule of practice requires a warning that it was dangerous to convict on the uncorroborated evidence of the complainant but there is no basis for the contention that convictions cannot be entered unless corroboration is present. Appeal dismissed save for count 2, but no difference because sentence imposed in respect of count 2 was less than that imposed for rape and was to be served concurrently: per Ward, P, Tompkins & Smellie, JJA in AAU0025/04S 18 March 2005].

Cases referred to in Judgment

Epeli Ratabacava v State Cr. App. 106/91S
Watisoni Davui v State [1997] HAA 10/97 9 June 1997

Appellant in person
Davendra Prasad for the Respondent

2 March, 2001

JUDGMENT

Prakash, J

This is an appeal by the Appellant against his conviction and sentence by the Nadi Magistrates' Court. The Appellant was tried and convicted for the Offence of Attempted Rape - contrary to Section 151 of the Penal Code. The offence was committed on 5th September 1998. The Appellant was convicted and sentenced on 6 March 2000.

The grounds of Appeal are expressed in the following terms:

1. In 1998 I was still a student at Ratu Navula Secondary School joining form 602 and was during my Biology Lab Class at about 0930am during school hours when I was still wearing my school uniform when the Police officers in charge took me to the Namaka Police Station for interrogation.

2. During my interrogation I was threatened and unlawfully accused just to fulfill the desire of the police officers so that I can be prosecuted in the victims (complainant's statement).

3. The Honourable Magistrate ruling in court had one sided and unfair which he and the prosecution are in their very best in trying to convict me. But in the DPP's guideline in 1998 article 29CD of the constitution embodies the rights to a fair trial where the honorable Magistrate had erred by law in denying me.

4. Your honour, now I am in jail and now I have realise the unfair justice that the honorable justice has done on my behalf.

5. Even Salen Kumar in 7 miles Nepani, Suva the son of Dasrat and Paroti which he raped a young 16 female and was sentenced to 6 months by the same honorable Magistrate on the 8th of March this year.

6. My past few days in prison, I have noticed out and found out that prison is not a proper place for a young left out high school student because in my short experienced, I have found out that prison are fertile breeding grounds where future ideas are always been swept away and the underworld life has been reinforced.

7. Last year I just completed my Fiji School Leaving Certificate Examination at Lelean Memorial School in Nausori and I was still waiting for my USP extension when I was convicted to jail and it was a first time I was convicted to jail.

8. Therefore from the above grounds and in your kind mercy and understanding I am now looking forward to your cooperation and I also totally understand that if without your cooperation and this need of mine will be totally worthless and incomplete.

At the hearing of his appeal the Appellant indicated to this Court that he did not wish to question his conviction but wanted the Court to consider his sentence only. Much of his presentation to this Court was mitigatory. Since the accused was unrepresented, and given the information in the Petition of appeal the Court did thoroughly consider the record of the Nadi Magistrates' Court. It is clear that the Appellant was represented by Counsel at his trial at Nadi. From the records it is clear that the trial was properly conducted, and the Appellant was given proper opportunities to defend himself. The issue of his interrogation and investigation by the Police were adequately presented. The complainant's evidence, as well as all Prosecution witnesses were fully tested. In this Court's view the learned Magistrate had fully considered the evidence in his judgment and properly convicted the Appellant. The State has in its written submissions briefly dealt with each ground of Appeal. I find that these adequately deal with the specific issues raised.

The sentence of 3½ years imposed on the Appellant was within the tariff for such offences (See Epeli Ratabacava v State (Cr. App. 106 of 1991S, and Watisoni Davui v State Cr. App. 10 of 1997). The learned Magistrate did consider the youth of the Appellant and his background. However, this Court is not clear about the sentencing remarks regarding the justification of punishing criminal attempts. Only two principles are identified. The wider purpose of sentencing needs to be considered. These are well known and include: retribution, denunciation, general deterrence, individual deterrence, rehabilitation and incapacitation. In Lister, quoted by D.A. Thomas (1980 ed) p35 footnote 1, it was stated that "...the proper way of sentencing is to look at the offence itself and the circumstances in which it was committed, then to assess the proper sentence for the offence on the basis that there are no mitigating circumstances, and finally to look to see what the mitigating circumstances are, if any, to reduce the assessed sentence to give effect to the mitigating circumstances."

I note that the Appellant has previous convictions for theft, the last being in 1996. However, he was not sentenced to imprisonment before. In his mitigation the Appellant emphasised his wish to continue with his education. From prison he was admitted to re-sit his Fiji School Leaving Certificate Examination which he sat in 1999. His admission slip was tendered. The results for 2000, which were made available to the Court, indicate that he has done the examinations less successfully than previously. This is understandable given the prison surroundings and lack of tutoring. The Appellant has already spent almost a year in prison and it is evident that this has taught him a lesson.

The Court finds the case of Tiare Bobo v State (Cr App 0049 of 1999 at Labasa) relevant to an appraisal of the sentence in this case. In that case the Appellant was relatively young and a first offender. His sentence was reduced from 3 years to 18 months. As in that case Section 380 of the Penal Code is relevant. After defining attempt it is stated

"It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention" (emphasis added).

It is clear from the evidence in this case that the Appellant was not able to penetrate the victim. However, when the victim suggested they change positions he agreed. That gave the opportunity for the victim to escape. In his sworn evidence the Appellant had stated that: "I tried to penetrate my penis into her vagina. She felt pain. I stopped..." This may appear a minor mitigatory factor in the totality of the evidence against the Appellant. However, it does suggest that he did consider the pain caused to the victim.

In considering all the factors relevant to the Appellant, especially his desire to continue with his education and his youth the Court will exercise leniency. The sentence of 3½ years is reduced to one year and nine months.

Appeal on sentence succeeds.

Marie Chan