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Levukaiciwa v State [2002] FJHC 289; HAA087.2001S (28 March 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA087 OF 2001S

BETWEEN:

EPIRONI LEVUKAICIWA; and
ALIFERETI TOKONA
Appellants

AND:

THE STATE
Respondent

Hearing: 22nd March 2002
Judgment: 28th March 2002

Counsel: Mr. S. Valenitabua for 1st Appellant
2nd Appellant in Person
Mr. N. Nand for Respondent

JUDGMENT

On 24th September 1996, the Appellants were with three others, charged of the following offences:

FIRST COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(b) of the Penal Code, Cap. 17.

Particulars of Offence

EPIRONI LEVUKAICIWA DIANI, PENI WAQA, LUKE RAVUWAI and FERETI TOKONA on the 25th day of May, 1996 at Mandir Street, Nakasi in the Central Division, robbed MUNI RATTNAM s/o MARI MUTTU of $400.00 cash, 1 video deck, valued $500.00, 1 walkman valued $59.00, 1 wrist watch valued $80.00, assorted clothes valued $100.00, frozen goods valued $30.00 and a pair of sandal valued $45.00 to the total value of $1,205.00 and immediately before such robbery used personal violence to MUNI RATTNAM s/o MARI MUTTU.

SECOND COUNT

Statement of Offence

RAPE: Contrary to section 149 and 150 of the Penal Code, Cap. 17.

Particulars of Offence

EPIRONI LEVUKAICIWA DIANI, PENI WAQA, LUKE RAVUWAI and FERETI TOKONA on the 25th day of May 1996 at Mandir Street, Nakasi in the Central Division, had unlawful carnal knowledge with VASEMACA DOLO, without her consent.

THIRD COUNT

Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to section 292 of the Penal Code, Cap. 17.

Particulars of Offence

EPIRONI LEVUKAICIWA DIANI, PENI WAQA, LUKE RAVUWAI and FERETI TOKONA on the 25th day of May 1996 at Mandir Street, Nakasi in the Central Division unlawfully and without the colour of the right not so as to be guilty of stealing, took to his own use of motor vehicle reg. no. CQ 465, the property of MUNI RATTNAM s/o MARI MUTTU.

The third accused pleaded guilty to the three counts and was sentenced to 5 years imprisonment on Count 1, 5 years imprisonment consecutive to Count 1, on Count 2 with 3 strokes, and 6 months imprisonment (concurrent to Count 1) on Count 3.

After many delays, caused by the prosecution and the defence, the trial against the remaining accused eventually commenced on 23rd August 1999. The prosecution called Muni Ratnam Goundar who gave evidence that he rented a house at Mandir Street at Nakasi with his wife Vasemaca Colo and a workmate. They had a 2 month old son who had been born by caesarian birth. In the early hours of the 25th of May 1996, he heard footsteps in the house and saw two people enter his room. An object like a screw driver was put to his throat and the men asked for money and gold. They took his wife away by pulling her. After 20 minutes they brought her back and kicked them both before they left. A number of items were missing from the house including a pair of brown cebo sandals. He identified a screwdriver in court as similar to the one held to his throat, and a pair of sandals which he said was his. He did not identify any of the accused because the robbers had their faces covered.

Vasemaca Colo gave evidence that when the men came into their bedroom, she got up to hold the baby. One of them pulled her away holding a kitchen knife to her neck. She was taken to a vacant room in the house where she was raped by five men. A sixth man lay on top of her, but when she cried out to him, he got up “without doing anything.” She then returned to her husband. Her baby was crying and the robbers told her to keep him quiet or they would kill him. One of the men pulled an earring off her ear. They told her to bend down, and one of them kicked her on the buttocks. They then left. She did not identify any of the accused but said that they were all Fijians, and smelt of alcohol and marijuana.

PC 1412 Josefa Voseiwaqa gave evidence that he searched the house of the 1st Appellant and found a pair of canvass shoes and sandals. The 1st Appellant was interviewed under caution. The interview was tendered. In that interview he admitted going to the house at Mandir Street with the other accused. He saw one of the accused breaking into the house with a kitchen knife, and said that they all went inside. He said he stayed outside as watchman. After a while he went inside and saw an Indian man holding a baby and one of the accused holding a Fijian girl and going through the rooms in the house. He saw the others searching the rooms and went into the kitchen to look for electrical appliances. He could not find anything and went into a room where he saw one of the accused having sexual intercourse with the girl. He said when he finished, the 1st Appellant lay on top of her to have sexual intercourse but that she pleaded with him, and that he then stood up and went outside. He hid beside the road, then, with the others boarded a van and left the scene. He said that he only stole the Cebo sandals that night.

Other police officers tendered the statements of the other accused. The prosecution then closed its case. The Magistrate ruled that the 5th accused had no case to answer on any count because he was not identified and he had denied the allegations under caution. He also found no case for the 2nd Appellant (the 4th accused) to answer on the rape count, although there was a prima facie case in respect of Counts 1 and 3. There was no case for the 2nd accused on Count 1, and a prima facie case against the 1st Appellant on all counts on the basis of his confession.

Later on, on the same day, after the Magistrate had ruled, counsel for the 1st Appellant made an application to submit that there was no case for him to answer. The Magistrate said that he had already ruled on the matter and declined to re-open the issue. The 1st Appellant then made an unsworn statement. The 2nd Appellant then changed his plea. His sentence was adjourned.

The 1st Appellant said that he did not rape the complainant, and that when she pleaded with him, he did not do anything to her.

The Magistrate then proceeded to judgment and convicted the 1st Appellant of Attempted Rape on the basis that there was no penetration, and of Robbery with Violence on the basis that he admitted to being a watchman, and to looking for electrical appliances. He was also found in possession of the stolen shoes. The 1st Appellant was also convicted of Unlawful Use of Motor Vehicle on the basis of his statement to police. He was sentenced to 4 years imprisonment on Count 1, 3 years imprisonment on Count 2 (consecutive to Count 1) and 3 months imprisonment on Count 3 to be served concurrently. The 2nd Appellant was sentenced to 3 years imprisonment on Count 1, ( to be served consecutive to the term being served) and 3 months (concurrent to Count 1) on Count 3.

The 1st Appellant now appeals against conviction and sentence on four main grounds:

1. That the trial Magistrate erred in refusing to hear counsel’s application to make submissions that there was no case to answer;
   
2. That the trial Magistrate erred when he found that the Appellant had a case to answer in respect of Counts 1 and 2;
   
3. That the Learned trial Magistrate erred in convicting the Appellant for Robbery with Violence, when he had done no violence, and was not an accomplice;
   
4. That the evidence of the complainant and the appellant was insufficient to prove Attempted Rape when the Appellant was fully clothed at all times and never intended to rape the complainant.
   

I have summarised the grounds of appeal in accordance with the way counsel addressed his submissions to me, at the hearing of this appeal.

The 2nd Appellant appeals against sentence only. His main ground of complaint is that the sentences on Counts 1 and 3 ought to be served concurrently on the basis of the totality principle.

THE GROUNDS OF APPEAL

1st Appellant

The first ground of appeal is that the Magistrate should have re-opened the question of whether or not there was a case to answer.

The record shows that counsel for the 1st Appellant, Ms Saumatua was present when the prosecution closed their case. She was present when the Magistrate ruled on whether there was a case to answer for each accused. She made no submissions then, but waited until 2.30pm, when the accused were supposed to tell the Magistrate what options they had chosen for the defence case, to say that she wish to make submissions.

State Counsel submitted that counsel’s failure to make submissions at the proper time did not amount to an irregularity. He referred to the case of R -v- Juett (1981) Crim. L.R. 113, in which counsel had failed to make such a submission at the close of the prosecution case. In that case, no admissible evidence had been tendered against the appellant by the prosecution, but the defence failed to make a submission of no case to answer. The judge proceeded with the case, and one of the accused in his sworn evidence, implicated the appellant. He appealed against his conviction. The Court of Appeal held that in an ordinary case “the omission by experienced defending counsel to make a submission which it was open to him to make would not found an appeal, as it was his responsibility to make such a submission and he would have his reasons for not doing so.” The conviction was however quashed on one count on another ground.

Counsel for the Appellant submitted that counsel in the Magistrates’ Court was not an experienced lawyer, and that the Appellant should not be allowed to suffer because of counsel’s mistakes.

While that argument may be valid in different circumstances, it is not valid in this case. Firstly, the Magistrate, although no submissions were made to him, did consider whether there was a case to answer against each accused. He ruled, that there was no case to answer for the 5th accused on any count, and no case to answer for the 4th accused on Count 2. As to the 1st Appellant he found a case to answer on the basis of the Appellant’s caution statement.

In the circumstances, given the clear and principled way in which he dealt with the evidence, it does not appear that the 1st Appellant was in any way prejudiced by the failure of his counsel to make submissions.

Secondly, given the clear admissions of the Appellant, and the nature of the evidence given by Vasemaca Colo, any submissions made by counsel would have made little difference to the ruling.

This ground of appeal fails.

The next ground is that the Magistrate wrongly ruled that there was a case to answer for the 1st Appellant. In her evidence, the complainant said that one of the accused did not penetrate, but lay on top of her with his clothes on. The 1st Appellant in his confession to the police said:

“I went into another room and saw one of the boys from Makoi fucking a girl. After that boy I also saw Peni fucking the girl and when Peni finished I lay on top of the girl to fuck her but she pleaded with me so I stood up and went outside.”

This confession was entirely consistent with the complainant’s evidence. There was no evidence of penetration. However, taken at its highest and uncontradicted, a reasonable tribunal could have convicted, on that evidence alone, of Attempted Rape. There was therefore a prima facie case of Attempted Rape. However the trial proceeded on the basis of the charge of rape, in respect of the 1st Appellant. In his unsworn statement, the 1st Appellant said:

“I want to tell the Court that I did not rape the lady. When rape happened I did not intend to do anything to this lady. I was told by my accomplice. When lady pleaded with me, not to do anything to her I did not do anything to her. I admitted in my interview because I was assaulted by police.”

Counsel then made closing submissions to the effect that the court had no power to convict of attempted rape, that a separate charge of attempted rape would have enabled the Appellant to properly prepare his case, and that there was neither an intent to commit rape nor a sufficiently proximate act to prove an attempt. The submissions fully explored the Appellant’s denial of an Attempted Rape.

In Shell Fiji Ltd. and Mobil Oil (Aust) Ltd. -v- The State Criminal Appeal No. HAA001/01 Gates J considered a conviction on a lesser offence under section 8 of the Litter Decree 1991. In that case the Magistrate had proceeded to convict of an offence of depositing dangerous litter, under section 8(3) of the Decree, instead of depositing dangerous litter under section 8(1). The alternative charge was never referred to by the prosecution, and a case to answer was found on the original charge. Defence counsel only referred to the lesser charge briefly, and it was evident that they were not prepared for a conviction on the lesser charge. The closing addresses made no mention of the section 8(3) offence.

Gates J quashed the conviction, saying at page 11:

“Ideally the court should have stated positively that such a change was under consideration so that all counsel could have addressed the Magistrate on the question of sufficiency of evidence on that charge: R -v- Taylor, Harrison and Taylor (1998) Crim. L.R. 582. In R -v- Wilson (1983) 3 ALL ER 448, at p.456 Lord Roskill stated the court’s duty to be that:

“..... a trial judge must always ensure, before deciding to leave the possibility of conviction of another offence to the jury under s.6(3), that that course will involve no risk of injustice to the defendant and that he has the opportunity of fully meeting that alternative in the course of his defence”.”

Returning to the case before me, a finding of a case to answer on Attempted Rape would not only have reflected the nature of the evidence led, but would have put the Appellant on notice as to the nature of the case against him.

However, having said that, I find that there was no doubt at all in counsel’s mind, that the court was considering a conviction of attempted rape. Although the prosecution made no submissions (presumably because some of the accused were unrepresented) counsel for the 1st Appellant was given 7 days to make written submissions. These submissions deal fully with the issue of Attempted Rape, including the legal definition of Attempt, and the acts of the Appellant in relation to that definition. There was clearly no element of surprise. Indeed his defence then, that he had neither the mens rea nor the actus reus for an Attempted Rape, is the basis of part of his appeal in this court. He was in no way prejudiced by the Magistrate’s failure to tell him that he could be convicted of an Attempted Rape. The Shell Oil (supra) decision is therefore distinguishable on the facts.

Further, although the Magistrate did not say that there was a prima facie case of rape on the basis that all accused were acting in concert with each other and could be convicted as joint offenders, he might well have done so, on the facts of the case. The accused were jointly charged on the count of Rape. That might have meant that there was a factual connection between separate acts of rape, or it might have meant that the accused were alleged to have acted jointly in a common enterprise. As Lord Diplock said in DPP -v- Merriman (1972) 3 ALL ER:

“Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the 18th century, to charge them in a single count of the indictment...... whenever two or more defendants are charged in the same count of an indictment with any offence which men can help one another to commit it is sufficient to support a conviction against any and each of them to prove either that he himself did a physical act which is an essential ingredient of the offence charged or that he helped another defendant to do such an act, and that in doing the act or in helping the other defendant to do it, he himself had the necessary criminal intent.”

A case to answer finding therefore in a joint charge (as Count 2 was) could have been on either of these bases. As I have said, if the interview was accepted, the Appellant only admitted to an attempt, and a case to answer therefore existed for an Attempt. However, there was also evidence that the Appellant was acting in concert with the other defendants, that he saw the complainant being pulled by one co-defendant, and being raped by two of them, and that he was in the room and joined in, at least to the extent of lying on her. Was he therefore acting in concert with the others on the count of Rape? Could a reasonable tribunal have concluded that he might be guilty of rape as a secondary offender? In my view, there was a prima facie case of a joint enterprise in respect of Count 2, and a prima facie case that the Appellant shared a common purpose to rape the complainant with the necessary intention. On that basis, the Magistrate might well have found a case to answer for Rape. After hearing the Appellant in his unsworn statement, the Magistrate was later entitled to accept the Appellant’s individual and separate offending as an Attempted Rape instead of a joint enterprise of Rape. For this reason also, I do not think that the finding of the Magistrate at the close of the prosecution’s case, was a ruling that prejudiced the Appellant.

This ground of appeal also fails.

Joint Enterprise

The next ground is in relation to the conviction of Robbery with Violence. The Appellant says that he was not a party to the joint enterprise. The evidence, however indicates otherwise. In his police statement (which the Magistrate accepted as being voluntary and true) the 1st Appellant admitted that he arrived at Mandir Street with the others, that he saw one of the men forcefully enter the house, that he stood outside as a watchman, that he entered and looked for electrical appliances, that he stole a pair of shoes and left with the others in the stolen van. There can hardly be clearer evidence that the 1st Appellant was part of the group, that he shared a common intention with them, and that he knew that the robbery was a probable consequence of the enterprise. The fact that he himself conducted no act of violence, does not exonerate him in respect of criminal responsibility. He could have been guilty of Robbery with Violence even if he had only been the watchman, and had never entered the house.

The Magistrate decided that the Appellant was a joint offender at p.116 of the record. He has not erred in either law or fact in coming to this conclusion. This ground fails.

The Attempt

The next ground of appeal is that there was insufficient evidence of an attempted rape. Vasemaca Colo’s evidence was (at p.64 of the record) as follows:

“Five people took turns to have sex with me. Six came wanting to have sex with me. One of them came and lay on top of me, I cried out to him and he got up from me without doing anything. I was wearing a dress at the time. This person who did not have sex with me was wearing clothes when he lay on top of me.”

The police statement of the 1st Appellant reads as follows, on the issue:

“I went further into another room and saw one of the boys from Makoi fucking a girl. After that boy I also saw Peni fucking the girl and when Peni finished I lay on top of the girl to fuck her but she pleaded with me so I stood up and went outside.”

The original Fijian interview, in respect of this passage reads:

“Au mani toso tale yani ki liu ka laki dolava tale e dua na katuba ni rumu, au dolava, curu ki loma, au raica ni dua vei iratou na cauravou ni Makoi e caita tiko e dua na yalewa. Ni oti na cauravou koya, au raica sara ni sa cai tale yani ko Peni. Ni oti ko Peni au sa vakarau sara meu davoci yalewa yani, ia e a mani vakamamasu sara ga mai ko koya ka kerei au me’u kua ni caiti koya. Au sa mani duri tale ka gole sara ki tautuba.”

An alternative translation might be that the Appellant “was getting ready to lie on top of the girl to have sexual intercourse with her.” However the police translation was accepted by the Magistrates Court in the form that it was tendered.

In his unsworn statement the 1st Appellant said:

“I want to tell the court that I did not rape the lady. When rape happened I did not intend to do anything to this lady. I was told by my accomplice. When lady pleaded with me, not to do anything to her I did not do anything to her.”

The Magistrate in his judgment, after referring to his powers to convict of Attempt under section 170 of the Criminal Procedure Code, read out the definition of “Attempt” in section 380 of the Penal Code. That section provides:

“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.

It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.

It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.”

The Magistrate then said:

“He said he lay on top of the girl to have sex with her. He did not ask any questions. She was not known to him. He was determined to have sex whether she was consenting or not. However later he withdrew because of her plea.”

The 1st Appellant’s conviction on Count 2 was therefore on the basis that the Appellant, intended to have sexual intercourse with the complainant whether or not she consented, and that he had put his intention into execution by the overt act of lying on top of her .

Counsel submits that the Magistrate erred because there was no evidence of either limb of Attempted Rape. However, even if I accept that the Appellant told the police that he was getting ready to lie on the complainant, the evidence of the complainant and the circumstances of the case show more than sufficient evidence of both limbs of the offence.

The evidence shows that the 1st Appellant was one of a group which broke into a stranger’s house using sharp objects. He saw the complainant being pulled (the word used is “captive”) from room to room. He saw at least two others having sexual intercourse with her. If he was present in the room, as he said he was, he must have heard her pleading with them to stop. He saw the girl’s husband being punched by “Duruka”. The circumstances of the case showed clearly that the complainant was not consenting to the sexual intercourse. Further, when the Appellant also prepared himself to lie on her, he had the intention of having sexual intercourse with her but desisted either because she pleaded with him, or (at page 6 of the interview) he could not get an erection.

Section 380 makes it clear that a man is guilty of an attempted rape when, with the intention to rape, he does an overt act, and the fact that he changed his mind, or he was prevented from completing the offence by independent circumstances, is irrelevant to his conviction.

Counsel suggested that the Appellant failed to take his trousers off, and that therefore there was no overt act. However, the Appellant told the police that he did not take his trousers off because he could not get an erection, and that he got ready to lie on her in order to have sexual intercourse with her. Further, the complainant said that he did lie down on her, and the Magistrate was entitled to accept her version of the facts. There was clearly an overt act for the purposes of section 380.

As to intent, the circumstances of the case show that the Appellant must have known that the complainant was not consenting. In any event, even if he was merely reckless about consent, the House of Lords in R -v- Khan and Others (1990) 2 ALL ER 783, said that under section 1(1) of the Criminal Attempts Act 1981 a man may commit attempted rape, if he did an act which was more than merely preparatory, and was reckless about lack of consent.

Section 1(1) of the U.K. Criminal Attempts Act provides:

“If, with intent to commit an offence to which this section applies, a person does an act which is more than preparatory to the commission of the offence, he is guilty of attempting to commit the offence.”

The mens rea for an attempt under the U.K. Act is therefore comparable to our section 380 of the Penal Code, and the House of Lords decision in Khan is therefore of some significance in Fiji. At page 788, the Court said (per Russell L.J):

“In our judgment, the words ‘with intent to commit an offence’ to be found in s.1 of the 1981 Act mean when applied to rape ‘with intent to have sexual intercourse with a woman in circumstances where she does not consent and the defendant knows or could not care less about her absence of consent. The only ‘intent’ giving that word its natural and ordinary meaning, of the rapist is to have sexual intercourse. He commits the offence because of the circumstances in which he manifests that intent, i.e. when the woman is not consenting and he either knows it or could not care less about the absence of consent.”

The Magistrate was therefore right to find sufficient evidence of both an overt act and an intention to commit the offence. This ground is unsuccessful. The 1st Appellant’s appeal against conviction fails.

Sentence

Both Appellants have appealed against sentence. Counsel for the 1st Appellant submitted the 3 years imprisonment was harsh and excessive for the Attempted Rape because he withdrew when pleaded with. He further submitted that 4 years imprisonment was harsh because he had only stolen sandals and that the others were far more culpable. The 2nd Appellant submitted that his sentences should have been ordered to run concurrently with each other and with the sentences he was then serving, because the consecutive sentences offended the totality principle. Counsel for the State said that the sentences passed did not offend the totality principle, were well within the tariff for these offences, and that there were no grounds to interfere with sentence.

In his sentencing remarks the Magistrate referred to guideline judgments for both Robbery with Violence and Rape. He correctly directed himself to the “starting points” for both types of offence, correctly considered previous convictions, took into account the length of time which had lapsed before trial, and finally considered the totality principle in respect of the serving prisoners. He ignored the 2nd Appellant’s previous convictions except for one conviction for Robbery with Violence which was less than 5 years old. He treated the 1st Appellant as a first offender. He then considered the seriousness of the offence, and all mitigating factors. After sentencing the accused, he gave the 2nd Appellant a reduction of one year to take into account the term he was then serving.

In these circumstances I find that the Magistrate did not err in principle. He considered all relevant matters, disregarded all irrelevant matters, and sentenced after considering the totality principle. In order to succeed on an appeal against sentence, the Appellant must show that the sentencer erred in principle, or imposed a sentence that was so harsh and excessive that it was an error in principle. The Appellants in this case have failed to establish either of these grounds. The appeals against sentence are also unsuccessful.

Conclusion

The appeal against conviction by the 1st Appellant, and the appeals against sentence by both Appellants are dismissed.

Nazhat Shameem
JUDGE

At Suva
28th March 2002