Appellant in Person
Mr. J. Rabuku for the Respondent
p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> JUDGMENT
On 6th the appellant was convicted by the Labasa Magistratstrates Court after he pleaded guilty to the following offence :
Statement of Offence
House Breaking, Entering with Intent to Commit Felony namely Attempted Rapen> : Contrary to Section 300(a) of thef the Penal Code Cap.17
Particulars of Offence
/p>
TEVITA TAIMALAWAI, on the 2nd day of March, 2001 at Viru in the Northern Division, broke and entered the dwelling ling house of TARUSILA KALELIA with intent to
commit felony namely attempted rape to the said TARUSILA KALELIA .
Upon his conviction the appellant was sentenced to five (5) years imprisonment `to show that this of offence has to stop and and (as) a warning to would-be offenders’. Cl, no consideration or leor leniency has been shown for the appellant’s guilty plea nor for the fact that, for all intents and
purposes, he was a first offender.n>
The appellant now appeals against bot conviction and sentence on several grounds which it is unnecessary to detail. The aphe appellao
was unre unrepresented at the appeal said :
 an>
`I am not guilty of committing offence to that lady. Husba complainant is relatrelated to me and was away at the time. Conant invited
another manr man into their home and I slapped her and since have apologised to her twice. She accepted my apologibsp She didn’t
report matter someone else did. I didn’t expectet such such such a long sentence. I am apologising to the Court now.’
State Counsel whilst accepting that there were lems’ with the charge as framed, nevertheless, soug sought to support the conviction relying upon proviso (a) to Section 319 of the Criminal Procedure Code and highlighting various material facts that were admitted by the appellant before the trial magistrate.
I accept that Section 309 of the Criminal Procedure Code prohibits an appeal `...... in the case of an accused person who has pleaded guilty and has been convicted on such plea by a magistrates court, ......’ but as was poinut to counscounsel, such a conviction can only be sustained if the offence charged is one known in law.
ass=MsoNormoNormal style="text-align: justify; margin-top: 1; margin-bottom: 1"> As was said by Grant C.J. (as he then was) in Gyo v. R (1976) 22 F.L.R. 1 at p.2 :
`...... it is well established that an appeal against conviction can be entertained on a plea of guilty if it ap that upon the admitted
facd facts the appellant could not in law have been convicted of the offence charged [R. v. Forde (1923) 2 K.B. 400 at 403] ; and it is upon this proposition that the appeal against conviction is founded.’
In the present case the following are the `problei> with regard to the charge against the appellant :
(1) p; &&bsp;;&bsp; &nbbp; Tpan>The Statement of Offence (as amended) refers to Sect00(a)of thPenal is eed ani> and is d is approappropriatpriate whee where an actual felony has been committed.
In this latter regard, I accept that, bynition, an offence of attempted rape is a `felony’ (see: Seb> Section 151 of the Penal Code), but the Particulars of Offence clearly refers `to an intent to commit a felony’ which is akin to the wording of an offence contrary to Section 302(1) of the Penal Code i.e. `Housebreaking with intent to commit felony’.
Quite plainly the reference to Section 300(a) is incorrect and unsupportethe Particarticulars thereby rendering the charge defective in form. But that is ll.
>
nbsp; (2) ; &nnsp;&&nsp;;&nbp; &nbp; Tpane is little doubt inbt in my mind that the `felony’ referred to in Sections amp; b> ofPeoden>not to an inchoate attempt which, bch, by defy definitiinition, won, would never be completed.
In the present charge as laid, the allegation is that the appellant broke and entered the complainant’s house with the specific intent
to commit attempted rape. Not to rape her (her (as should have been charged), but only to attempt it, and therefore, presumably, the accused also had a specific intention, at the time, of desisting or stopping from ever completing the
offence even if it were possible to do so.
I confess there is an air of artificiality about such a charge which I hold to be also defective in substance.
I am fortified in my view by the judgment of the Court oeal in Karolina Adiralulu v. R. Cr. Apr. App. No.11 of 1983 (unreported) where the Court in rejecting the possibility of entering a conviction for an offence of attempted infanticide on a charge
of attempted murder said at p.5 :
`With all respect to the view of the learudge ...... we are of the opinion that there is no such offence in Fiji as attempted infantnfanticide.’
