Rokowaqa v Reginam [1977] FJSC 22; Criminal Appeal 034 & 035 of 1977 (13 May 1977)

Fiji Islands - Rokowaqa v Reginam - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

APPELLATE JURISDICTION

CRIMINAL APPEAL Nos. 34 and 35 of 1977

BETWEEN:

:

PAULIASI NAMULO ROKOWAQA

AND:

REGINAM

ll>JUDGMEUDGMENT

On the 2nd Mard March 1977 at Nausori Magistrate's Court the appellant was convicted on wn plea of unlawful wounding with intent to cause grievous harm contrary to section 255(a) 5(a) of the Penal Code and was sentenced to two years' imprisonment.

On the 3rd March 1977 at Suva Magistrate's Court the appellant was convicted on his own plea of two offences of rape contrary to section 144 of the Penal Code and was sentenced to consecutive sentences of five years' imprisonment for each offence.

The appellant has appealed on the grounds that the aggregate sentence of twelve years' imprisonment is too severe.

With regard to the offence of unlawful wounding with intent to cause grievous harm, the appellant was alleged to have pressed the blade of a pen knife against the right cheek of the complainant - but he claimed that it was a stick and not a knife.

The question of whether it was a knife that was used or a stick was very relevant to sentence, and it was necessary for the trial Magistrate to resolve the conflict so as to be in a position to assess the appropriate penalty. If the prosecution were not prepared to concede that a stick was used the trial Magistrate should have heard evidence on oath limited to the disputed facts and made a finding as to which version of events he accepted; and I would draw attention to the judgment of this Court in The Director of Public Prosecutions v. Jolame Pita Suva Criminal Appeal No, 2 of 1974.

This the trial Magistrate did not do, but simply sentenced on the basis that a knife was used. He appears to have overlooked that according to the medical report the injury was inflicted with a "blunt" object - which obviously favours a stick. Further, the injury inflicted was a tiny puncture wound only ½ a millimetre deep, more in the nature of a scratch.

The Crown concedes that the appellant should be dealt with on the basis that he only used a stick, that it is doubtful whether the very slight injury inflicted constituted a wound, and that an intent to do grievous harm appears to have been lacking.

In these circumstances I am, by virtue of section 163 of the Criminal Procedure Code, substituting a conviction of assault occasioning actual bodily harm contrary to section 277 of the Penal Code; and I quash the sentence of two years' imprisonment and substitute therefor a sentence of six months' imprisonment with effect from the 2nd March 1977.

With regard to the sentences imposed for the two offences of rape, these were serious crimes and had the appellant not pleaded guilty would have merited five years' imprisonment on each count. However a plea of guilty showing an element of remorse is a mitigating factor. As was stated by Widgery L.C.J. in R. v. Cain (1976) The Times February 20 " ... it is trite to say that a plea of guilty will generally attract a somewhat lighter sentence than a plea of not guilty and a full-dress contest on the issue. Everybody knows that it is so, and there is no doubt about it. Any accused person who does not know about it should know it. The sooner he knows the better." Moreover, these being sexual offences, the appellant by pleading guilty saved each of the complainants from the ordeal of having to give distressing evidence of an intimate nature, a factor which should certainly be taken into account in the appellant's favour.

I accordingly quash each of the sentences of five years' imprisonment and substitute therefor consecutive sentences each of four years three months' imprisonment with effect from the 3rd March 1977.

Thus the aggregate sentence imposed is now one of nine years' imprisonment.

Clifford H. Grant
CHIEF JUSTICE

Suva,
13th May 1977.