Rakorako v Reginam [1978] FJSC 123; Criminal Appeal No. 85 of 1978 (24 November 1978)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

Criminal Appeal No. 85 of 1978

BETWEEN

PENI RAKORAKO

AND

REGINAM

JUDGMENT

On the 4th September 1978 at Suva Magistrates Court the appellant was convicted on his own plea of assault with intent to commit a felony contrary to section 279(a) of the Penal Code and was sentenced to eighteen months' imprisonment. The appellant has appealed against conviction and sentence.

Section 290(1) of the Criminal Procedure Code provides that:

"No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on such plea by a magistrates' court, except as to the extent or legality of the sentence."

That section presupposes that the offence to which an accused has pleaded guilty is one known to law, that the admitted facts substantiate the offence charged, and that the accused understood the charge and unequivocally admitted his guilt; and this Court can entertain an appeal against conviction after a plea of guilty only if the grounds relate to one or other of these elements (R. v. Mohammed Khalil and Anor. Labasa Cr. App. Nos. 10 and 11 of 1978; R. v. Gyan Deo Labasa Cr. App. No. 12 of 1975).

On the face of it the petition of appeal filed herein by counsel was acceptable, the two grounds being that the appellant did not fully understand the nature of the charge, and that upon the admitted facts he could not in law have been convicted of the offence charged.

The charge in question was properly framed and specified that the appellant had assaulted the complainant with the intention of raping her. To this charge the appellant pleaded guilty. The facts were then stated, disclosing that in the early hours of the 2nd September 1978 while under the influence of liquor the appellant, who was in the company of an eighteen year old girl, pull her towards him and demanded that she have sex with him. She refused whereupon he started removing her trousers by force. She resisted whereupon the appellant pulled her down onto some steps and struck her on the face, head and body while trying to remove her trousers which he tore in the process. She screamed for help whereupon the appellant put his hand over her mouth and tried to drag her to a nearby toilet. She managed to break free and fled to a public thoroughfare from where she reported the matter to the police.

These facts, which fully support the offence with which the appellant was charged, were admitted by the appellant who could not have been in any doubt about the position. In asking for leniency the appellant described his attack on the girl as "playing games", but in my view of his admission of guilt to the clearly expressed charge and his admission of the detailed facts I do not consider that this casts any doubt on the plea.

In any event, on the hearing of the appeal, virtually no attempt was made to argue the grounds filed. Instead counsel for the appellant submitted that on his instructions an entirely different incident had occurred which did not constitute any offence and which bore no relationship whatever to the admitted facts; and that the appellant, in admitting the offence with which he was charge and in admitting the facts of that offence did so, not because he was guilty, but because he thought he would only be fined and would be able to return the same day to Kadavu with a football team of which he was the captain.

I need hardly point out that no appeal lies on such grounds, and had this Court known that in lieu of the grounds of appeal contained in the petition the appellant would be relying on the submissions made by his counsel, the appeal against conviction would not have been entertained.

With regard to sentence, counsel for the appellant submitted that the trial Magistrate had wrongly taken into account the prevalence of this type of offence and in support of this proposition counsel for the appellant cited R. v. Mosese Namali and Ors. (Suva Cr. App. No. 60 of 1976) which relied on R. v. Casey [1931] NZGazLawRp 20; (1931) N.Z.L.R. 594. However, as this Court pointed out at some length in R. v. Laisenia Vateitei (Suva Cr. App. No. 83 of 1976), R. v Casey is not an authority for the proposition that the prevalence of an offence is not a relevant consideration in sentence - indeed it is a most relevant consideration - and R. v. Namali & Ors. should not be followed.

In the circumstances of this case the sentence imposed by the trial Magistrate was fully justified.

The appeal is dismissed.

Chief Justice

Suva,
24th November 1978.