Reginam v Turagayali [1978] FJSC 113; Review 15 of 1978 (22 December 1978)

IN THE SUPREME COURT OF FIJI
REVISIONAL JURISDICTION

Review No. 15 of 1978

IN THE MATTER OF THE
CRIMINAL PROCEDURE CODE

AND IN THE MATTER OF CRIMINAL
CASE NO. 221 OF 1978 BEFORE THE
MAGISTRATES COURT AT TAILEVU

REGINAM
Complainant

AND

1. SAVENACA TURAGAYALI

2. ILAITIA QALO

3. SAMUELA VINAKAYAWA
Respondents

ORDER ON REVISION

On the 4th December 1978 at Tailevu Magistrates Court the three respondents were jointly convicted of rape contrary to section 144 of the Penal Code and were each sentenced to two years' imprisonment, and to nine strokes of corporal punishment subject to confirmation by the Supreme Court.

The brief facts of the case are that in the early hours of the morning of the 1st December 1978 an eighteen year old girl was sleeping at her parents' house. The respondents, who had been drinking illegally brewed liquor, went to the house and the first respondent punched open the front door and entered while the other two stood by the door. The first respondent woke the girl and told her to come outside and have sex. She refused whereupon the first respondent placed his hand over her mouth, the second respondent entered the house and held her head and one of her arms, and the third respondent entered the house and held a lamp to light the scene. The first respondent undressed himself, raised the girl's dress, removed her underwear, lay on top of her and forcibly raped her. The second respondent then prepared to rape the complainant, with the third respondent holding her head, whereupon the complainant managed to free her mouth and scream. This was heard by another girl in the house who raised the alarm. The respondents fled, the police were informed, and the respondents subsequently traced and arrested.

The first respondent, who is eighteen years of age, has two previous convictions for assault occasioning actual bodily harm and throwing objects; the second respondent, who is twenty years of age, has three previous convictions for housebreaking entering and larceny, larceny from the person and throwing objects; and the third respondent, who is nineteen years of age, has three previous convictions for larceny from a dwelling house and injuring animals.

In view of the prevalence and the serious nature of this offence, the sentences of imprisonment imposed by the trial Magistrate are unrealistic.

In R. v. Suliasi Bolakivei & Ors. Suva Cr. App. No. 13 of 1978 in which the circumstances were very similar, this Court stated: "Gang rape is particularly abhorrent and in this case the offence is further aggravated by the fact that the girl was attacked and raped in the security of her grandfather's house"; and enhanced sentences of three years six months' imprisonment to five years' imprisonment with six strokes of corporal punishment. In the same judgment this Court advised Magistrates on the approach they should adopt when dealing with the varying circumstances of rape, and I redirect the attention of the Resident Magistrates to the contents of that judgment.

In the exercise of the revisional jurisdiction of this Court the sentences imposed by the trial Magistrate are set aside and in substitution therefor the respondents, being joint offenders, are each sentenced to five years' imprisonment with effect from the 4th December 1978.

The first respondent as the ring leader is sentenced also to six strokes of corporal punishment.

Chief Justice

Suva,
22nd December 1978.