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Tukalau v The State [1995] FJHC 149; Haa0034j.95b (21 September 1995)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 34 OF 1995

Between:

ISOA TUKALAU
Appellant

- and -

STATE
Respondent

Appellant in Person
Ms Laisa Laveti for the Respondent

JUDGMENT

On 5 June 1995 the appellant was convicted and sentenced to imprisonment for 3 years and 9 months in the Magistrate's Court at Taveuni consequent upon his own plea on the charge for the offence of house-breaking with intent to commit a felony namely rape contrary to section 302(2) of the Penal Code.

The appeal is mainly against the severity of sentence and also that the learned Magistrate failed to take into account certain mitigating factors.

The appellant submitted in the appeal that the sentence ought to be reduced as when he broke and entered the complainant's house he was "drunk with grog". He denied that he intended to commit rape although he did want to ask her for an "affair" with him but when he touched her "she cried I walked out". He further stated that he has reconciled with the complainant who is his sister-in-law.

The learned State Counsel concedes that the outline of facts "do not disclose intent" and therefore the "charge would be defective". She said that the benefit of doubt should be given to the appellant and the conviction cannot be sustained. She relied on the judgment of FATIAKI J in the case of LOLOMA SARATIBAU and THE STATE (Labasa Crim. App. No. 20 of 1995 of 17.7.95). It was a damaging property case where the conviction was quashed as the essential ingredient of the offence, namely, intent was not proved. There was a cautioned interview and the accused denied that he intended to "hit the glass". But here there does not appear to be any cautioned interview.

The learned State Counsel has quite rightly conceded that the conviction cannot be sustained.

Although the appellant, who was unrepresented, pleaded guilty to the charge, the facts outlined to Court make no mention whatsoever of what the "intent" was when he broke and entered the house. On the hearing of the appeal the appellant denied that he intended to commit "rape". The prosecution did not even inform the learned Magistrate that the cautioned interview, if there was any, had something to say about the "intent" element. In these circumstances I fail to understand how the learned Magistrate after giving a long lecture on intrusion of privacy came to the conclusion that "the accused not only broke into the complainant's house he admitted he wanted to rape her also".

After the appellant had pleaded guilty to the charge as read out to him, the facts outlined to Court did not disclose that he broke and entered "with intent to commit a felony, namely, rape". In such circumstances it was held in EMORI FOTU v REGINAM (FLR p.113) that "the Court was acting improperly in recording a conviction" and that "there must be, however, some clear evidence of the intent to commit a specific offence". The learned Magistrate could not in the case of this appellant be satisfied from the facts that he broke into the house with the intent of committing "rape".

For these reasons it is unsafe to allow the conviction in the present case to stand. The conviction is therefore quashed and the sentence set aside.

The appeal is allowed for the above reasons.

D. Pathik
Judge

At Labasa
21 September 1995

HAA0034J.95B