Vakacegu v Reginam [1977] FJSC 48; Criminal Appeal 81 of 1977 (2 September 1977)

IN THE SUPREME COURT OF FIJI
Appellate Jurisdiction
Criminal Appeal No. 81 of 1977

JEREMAIA VAKACEGU
Appellant

v.

REGINAM
Respondent

JUDGMENT

The appellant was charged with attempted rape contrary to section 145 of the Penal Code. He pleaded not guilty. After the complainant and another witness had given evidence for the prosecution the appellant changed ate his plea to one of guilty. He was convicted and sentenced to 3 1/2 years' imprisonment.

This appeal is against sentence only.

At about 5.30 a.m. the complainant, a married woman, was walking alone towards a bus stop when she was waylaid by the appellant and carried forcibly by him and another person to an isolated passageway near a parked empty bus. She was punched and received injuries to her face. Ignoring her loud screams the
appellant pulled her pants down while the other man acted as a lookout at the end of the passageway. The second prosecution witness Nabuta heard the Complainant, screams some distance away and arrived just in time to prevent the complete offence of rape being committed.

The appellant has a bad record involving crimes of violence, through not a sexual offence. In the learned Magistrate's notes appears the following sentence:

"I am told by the prosecution when I enquired just now that Accused's companion received a 12 months sentence suspended for his part in the offence. I don't feel I should comment on that offence."

The only ground put forward by learned Counsel for the appellant disparity is that of disparity between the two sentences.

It would appeal from the particulars of the offence in this case that the other parson was not charged jointly with this or any other offence arising out of this fact. The learned Magistrate was not told what specific offence he was convicted of. Under the circumstances it is difficult for this Court to form any view of the basis on which the other Magistrate sentenced the appellant's companion.

The learned Magistrate in this case said:

"I do feel however the Accused was the person who originated and pursued the attacked and attempted rape of Mrs. Lesi. I feel that such being the case I am justified in giving a sentence of considerable disparity."

He also took into account the, prevalence of sexual offence in this area.

In view of these considerations I am not prepared to accept that the sentence is wrong in principle or manifestly excessive.

The appeal is dismissed.

(Sgd.) G.Mishra
Acting Chief Justice

Suva,
2nd September 1977