Bolakivei v Reginam [1978] FJSC 28; Criminal Appeal 013 of 1978 (10 February 1978)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

Criminal Appeal No. 13 of 1978

Between:

1. SULIASI BOLAKIVEI
2. TAPIELA ROKO
3. ISOA VATURARABA
4. MALANI VOSACOLATI
5. JOSEFA COLAIVALU

and

REGINAM

JUDGMENT

On the 6th January 1973 at Nausori Magistrates Court the five appellants were convicted after trial of rape contrary to section 144 of the Penal Code and were each sentenced to three years six months' imprisonment.

The appellants, through counsel, have appealed against conviction on the grounds that the decision is unreasonable and cannot be supported by the evidence, that the trial Magistrate wrongly directed himself on the issue of corroboration, and that he wrongly admitted and relied on hearsay evidence; and have appealed against sentence as being harsh and excessive.

Before an appellant can succeed on the first ground he must show that there was no evidence on which the trial Magistrate could reach the conclusion which he did if he properly directed himself (Kamchan Singh v. The Police (1953) 4 F.L.R. 69). This the appellants have failed to do. There was ample evidence to establish the ingredients of the offence and to justify the conviction of each appellant.

As to the second ground, the trial Magistrate in a detailed judgment went out of his way to deal fully with the question of corroboration and properly directed himself.

The third ground relates to the admission in evidence of a complaint made by the victim of the rape after the event and is inexplicable, as a recent complaint in a sexual case does not offend the hearsay rule but is a classic exception to the rule excluding self-corroborative evidence.

As to sentence, far from being harsh and excessive it was grossly inadequate, in view of the serious nature of the offence.

The evidence clearly establishes that on the night of the 11th October 1977 a sixteen year old girl was sleeping at her grandfather's house when the five appellants, aged between seventeen and twenty years, broke into the house. The girl was woken and punched and each of the appellants then raped her. An eight year old bay, who was the only other occupant of the house at the time, ran to the nearest village to fetch help.

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' house. In such circumstances I fail to understand why the trial Magistrate imposed such a mild sentence.

In the past, sexual offences were not a serious problem in Fiji. Even at the time of the Royal Commission of Inquiry into Crime (1975) rape had increased by only 4 per cent as compared to a 328 per cent increase in offences of robbery. Since then, as I recently pointed out, there has been an alarming increase in rape, and on more than one occasion I have found it necessary to advise Magistrates in appropriate cases to use their maximum powers of sentence.

The circumstances of rape vary considerably, and there are many cases in which the maximum custodial sentence of five years' imprisonment that a Magistrate can impose is more than adequate, particularly where there is some element of invitation or encouragement However there are circumstances which warrant a heavier sentence, particularly gang rape, or where the rapist has used substantial violence, or has broken into the home of the victim, and cases involving a quasi-parental relationship, or where the victim is very young. In such cases, regard should be had to section 214 of the Criminal Procedure Code which enables the prosecution to require that a preliminary inquiry be held with a view to having the accused committed to the Supreme Court for trial; to section 210 of the Criminal Procedure Code which enables a Magistrate at any stage to convert a trial into a preliminary inquiry and commit the accused to the Supreme Court for trial; and to section 212 of the Criminal Procedure Code which enables a magistrate to commit an accused to the Supreme Court for sentence if, as a result of matters revealed during the hearing which are connected with the offence charged and which reflect on the accused's character, or as a result of obtaining information as to the antecedents of the accused (including but not limited to previous convictions), the Magistrate is of opinion that greater punishment should be imposed in respect of the offence than he has power to inflict (R. v. Vallet (1950) 34 Cr.App.R. 251; R. v. King's Lynn Justices (1969) 53 Cr.App.R. 42).

Like most violent offenders, the appellants had all been drinking. Alcohol is the lubricant of violence, and if there is to be a reduction in offences against the person, and if the girls and women of Fiji are to be protected, something must be done to curb drunkenness. Heavier sentences alone are not the answer.

The appeal is dismissed, the sentences are quashed, and in substitution therefor each appellant is sentenced to five years' imprisonment with effect from the 6th January 1978, and to six strokes of corporal punishment.

Clifford H. Grant
Chief Justice

Suva,
10th February 1978.