Posorio v Reginam [1978] FJSC 47; Criminal Appeal 052 of 1978 (28 August 1978)

IN THE SUPREME COURT OF FIJI
Appellate Jurisdiction

Criminal Appeal No. 52 of 1978

GEORGE POSORIO
Appellant

v.

REGINAM
Respondent

Appellant in Person
Mr. I. Khan for the Respondent

JUDGMENT

The accused was convicted of attempted rape and sentenced to 5 years' imprisonment. He has drafted his own grounds of appeal which clearly referred to the sentence but the rest was somewhat garbled. Before the hearing commenced I managed to elucidate that although he admitted assaulting the victim he wished to plead against the conviction for attempt rape. Crown counsel having no objection the appeal proceeded on that basis.

Being in person the accused had little to say and he stated that what he wanted to tell me was contained in his petition. His petition shows that he was under the influence of liquor at the time and follows up his evidence in the Magistrate's Court which was that the female complainant had stolen some recorded tapes of his.

His appeal against conviction really amounts to a complaint that the decision could not be supported having regard to the evidence.

There was in this case no doubt on the question of identity. The accused had been to the same night club as the complainant and they had gone on from there to the home of a mutual acquaintance and consumed beer, which may well have been in addition to anything consumed in the night club.

The complainant left her friend's home about 3 a.m. and was followed by the accused. She said he attacked her, forced her to the ground, punched her face and tried to rape her. She escaped and hit in the lavatory of a nearby house, having lost her shoes in the struggle. She emerged at day break and was found by a passing motorist to whom she made her complaint and he took her to the police station. He gave evidence of her bruised and beaten condition which was supported by medical evidence. She was in fact badly beaten.

In his evidence the accused admitted assaulting the complainant and tearing her dress. He said he was angry because she had taken two of his recorded tapes. Evidence which the Magistrate accepted revealed that the tapes did not belong to accused but to the friend whose home they had just left. He also found that the accused had said nothing to the police about the tapes and was using this as an explanation for his violent behaviour to the complainant.

In a voluntary statement to the police the accused admitted asking the complainant to have intercourse with him and that she refused. In evidence he stated that he had not desired to have intercourse with her.

The learned Magistrate considered the evidence very carefully and gave full reasons for accepting the evidence which he acted upon. He was fully justified in convicting the accused and the appeal against conviction is dismissed.

With regard to appeal against sentence I concur in the accused's complaint that it is severe but that is not the same thing as manifestly excessive or even excessive. The attack on the complainant was by no means half-hearted; it was pressed with great violence and the complainant suffered a very severe beating in the course of her resistance. It was only because she managed to escape and hide that brought the attack to an end; the accused did not desist of his own volition. The accused has two previous convictions neither of which resulted in prison terms but they indicate some leaning towards violence. In 1972 he was bound over for assault occasioning actual bodily harm and in 1977 fined $100.00 or 5 months' in default for damaging property.

One must not overlook the prevalence of rape at the present time and the learned Magistrate had regard to this factor.

I consider that I would not be justified in interfering with the sentence.

The appeals against conviction and sentence are dismissed.

J.T. Williams
JUDGE

Suva,
28th August, 1978