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Nakavika v State [2002] FJHC 265; HAA0040.2001 (22 April 2002)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0040 OF 2001

Between:

PAULA NAKAVIKA
Appellant

And:

THE STATE
Respondent

Mr. H. Robinson for the Appellant
Mr. J. Rabuku for the Director of Public Prosecutions

REASONS FOR DECISION

At the end of the hearing of this appeal on 25th March 2002 the appeal was allowed and the appellant was ordered to be immediately released. On that occasion I indicated that I would provide reasons in due course which I now do.

The appellant was convicted by the Labasa Magistrates Court after he pleased guilty to an offence of Attempted Rape and admitted the facts outlined by the prosecutor which told of how the appellant had accosted the complainant when she was returning home from school and had pulled her to the roadside and had forcibly kissed her and restrained her despite her protestations until the complainant managed to free herself by biting him on the left arm.

In mitigation the appellant indicated that he and his parents had traditionally reconciled with the complainant and her family after the event.

The trial magistrate in sentencing the appellant to 18 months imprisonment said :

`Reconciliation will only mitigate on the sentence as the offence is not reconcilable. Accused had committed this offence on a student and her experience is likely to be with her for life.’

The appellant through his counsel appealed against the sentence on several grounds including that it was `harsh and excessive taking into account the circumstances’ and the trial magistrate had `failed to consider relevant mitigation factors.’

Counsel for the appellant in arguing the appeal highlighted the relative youth of the appellant (Date of Birth : 25.3.83) at the time of the incident and the fact that he was a first offender that had pleaded guilty at the earliest opportunity.

Counsel indicated that these mitigating factors were not taken into account by the trial magistrate. Certainly they were not mentioned in the sentencing remarks and further the trial magistrate does not appear to have considered a non-immediately custodial alternative or requested a welfare officer’s report as he should have done.

Counsel also submitted that the facts outlined and admitted by the appellant did not support the charge and at most amounted to an indecent assault for which the appellant came off the worst.

State Counsel whilst seeking to support the sentence conceded that the facts did not support the charge of attempted rape in the absence of any unequivocal proximate overt act sufficient to sustain the charge such as the appellant being naked at the time or evidence of a serious attempt to undress the complainant.

I was satisfied that this latter concession was well made and that the trial magistrate in imposing sentence had erred in not considering and properly accounting for the several mitigating facts urged by counsel for the appellant which were also well-taken.

For the foregoing reasons, the appeal was allowed and mindful that the appellant had almost served out his entire sentence, his immediate release was ordered.

D.V. Fatiaki
JUDGE

At Labasa,
22nd April, 2002.