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Bobo v The State [1999] FJHC 146; Haa0049j.99b (23 August 1999)

IN THE HIGH COURT OF FIJI
At Labasa
Appellate Jurisdiction

CRIMINAL APPEAL NO. 0049 OF 1999

Between:

TIARE BOBO
Appellant

And:

THE STATE
Respondent

Appellant in Person
Ms. A. Driu for the Respondent

JUDGMENT

The appellant was convicted after a short trial in the Savusavu Magistrate Court for an offence of Attempted Rape and sentenced to three (3) years imprisonment.

He now appeals against both his conviction and sentence on the various grounds set out in his petition of appeal.

As for the appeal against conviction the appellant complains in his petition that he ‘did not understand the nature of the offence and pleaded guilty’. The Magistrate Court record however clearly indicates (at pages 3 & 4) that on at least two occasions namely, the 9^th of July 1998 and the 17^th of November 1998 the charge was not only ‘read and explained’ to the appellant but plea, on both occasions, is recorded as ’Not Guilty’.

Furthermore, the fact that witnesses including the complainant, were called to prove the charge against the appellant during which time he was granted and took the opportunity to ask question, makes it clear beyond all doubt that the trial magistrate had treated the appellant’s pleas as a denial of the charge.

Quite plainly there is neither any truth or merit in this ground of appeal against conviction which is accordingly dismissed.

The second ground of appeal against conviction raised in the appellant’s written submissions is based on the apparent claim by the appellant that ‘there was not intention of my having sex with the complainant’.

It is common ground and accepted that sexual intercourse did not actually take place between the complainant and the appellant who were both naked during some part of the incident, but that fact alone is equivocal. It is consistent both with an intention to have sexual intercourse and with the absence of any such intention.

An ‘attempt’ is defined in Section 380 of the Penal Code (Cap. 17) as follows:

‘When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence’.

Whatsmore an ‘attempt’ is completely establish irrespective of:

‘........., whether the offender does all that is necessary on his part for completing the commission of the offence, ...............’ or whether he desists of his own motion from the further prosecution of his intention.’

In this case the appellant’s criminal ‘intention’ is made plain in my view by the admitted fact that he undressed himself. I say ‘made plain’ because if, as the appellant claims, he only intended to perform oral sex on the complainant why then was it necessary for him also to undress? There is only one truly natural, reasonable and irresistible answer i.e. that he intended to have unlawful sexual intercourse with the complainant. The fact that he may have voluntarily stopped because he ‘felt pity’ on (the complainant)’ is by law ‘immaterial’ to the completion of the offence.

This ground too is baseless and is also dismissed. The appellant’s conviction is accordingly upheld.

As for the sentence, the appellant incorrectly complains that he was denied the opportunity to mitigate. He also complains that the sentence imposed is ‘too harsh and excessive’ as the trial magistrate failed to take into account his relative youth and the fact that he is a first offender.

Undoubtedly the appellant has been convicted of a ‘very serious offence’ which was perpetrated on an unsuspecting innocent minor who he claims was a distant relative, and an immediate custodial sentence was wholly appropriate.

Equally it is true that the appellant is a relatively young (22 years) first offender and as such, merits some leniency despite his ‘not guilty’ plea. Yet neither fact is mentioned in the trial magistrate’s sentencing remarks.

Whatsmore the appellant claimed in his unsworn statement that: ‘(the complainant) struggled and I felt pity on her so I gave her panty back’. In other words the appellant voluntarily desisted from completing the offence.

This was ‘evidence’ (See: the unreported judgment in R.v. Gurmel Singh Suva Cr. App. No. 123 of 1973) before the trial magistrate which was not clearly rejected, and indeed, appears to be supported by the complainant herself when she said (at bottom of p. 19)

‘While struggling, my head was moving out of culvert. I pushed him. He told me to go. He gave me my panty and I asked him for my flip-flop.’

Such voluntary desistance whilst ‘immaterial’ in the legal definition of an in the legal definition of an ‘attempt’ is nevertheless recognized in Section 380 (op.cit) as material ‘as far as regards punishment’.

In the circumstances this court is able to show the appellant some leniency. The sentence is accordingly reduced to eighteen (18) months imprisonment with effect from the 10^th of February 1999.

(D. V. Fatiaki)
JUDGE

At Labasa
23^rd August, 1999

HAA0049J.99B