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Bai v State [2002] FJHC 296; Criminal Appeal 33.2001 (20 May 2002)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0033 OF 2001

Between :

TEVITA BAI
Appellant

And

THE STATE
Respondent

Appellant in Person
Mr. J. Rabuku for the Respondent

JUDGMENT

The appellant was convicted in the Magistrate Court Labasa after he pleaded ‘guilty’ to an offence of Rape. Upon his conviction the appellant was sentenced to 5 years imprisonment being the maximum sentence that the Court could impose.

In sentencing the appellant the trial magistrate referred to a sentence he had passed earlier in the day for a similar offence where he said :

‘...... there are too many of these sorts of sexual offences being committed especially against our women and children and it has to stop.’

The appellant now appeals against the sentence on the ground that it is ‘harsh and excessive’ and the appellant asserts that the complainant ‘was a willing partner.’

At the hearing of the appeal State Counsel drew the court’s attention to the provisions of Section 309 of the ‘CPC’ which bars an appeal against the conviction ‘of an accused person who has pleaded guilty and has been convicted on such plea by a magistrates court.’

However, as the appellant was unrepresented at trial and on appeal, the court considered it prudent to hear the appellant.

The appellant claimed that intercourse was consensual and that he had told the police this in his interview with them. He also claimed that the complaint had been instigated by an aunt of the complainant whom the appellant had allegedly chased from the scene after the incident had occurred.

State Counsel on examining the relevant police docket was able to confirm that the complaint was laid by the victim shortly after the incident had occurred and that she had given a statement to the police, consistent with her being raped. In addition, the appellant’s police interview record indicates that, despite his claims to the contrary, the appellant had not told the police that intercourse was consensual. It was common ground however that the complainant’s young daughter had intruded on the scene during the course of the act and had immediately complained to her aunt that her mother was being ‘hassled by a Fijian man.’

In light of the foregoing I am satisfied that the appellant was properly convicted on his ‘guilty’ plea and the conviction is accordingly sustained.

As for sentence, State Counsel whilst asserting that a sentence of 5 years is, in principle, neither ‘harsh or excessive’ for an offence which carries a maximum penalty of life imprisonment, nevertheless, accepted that no consideration had been given by the trial magistrate for the mitigating effect of the appellant’s guilty plea.

That an early admission of guilt is a strong mitigating factor has long been recognised by the Courts both here and abroad, more so, where the offence is of a sexual nature since the victim is spared the ordeal of having to relate highly personal and often embarrassing details about the event.

In the present case however the trial magistrate ignored this element of mitigation in preferring a deterrent sentence and thereby imposed the maximum sentence possible on a relatively young (23 years old) first offender. I am satisfied that in doing so the trial magistrate erred.

The appeal against sentence is allowed and the sentence is accordingly reduced to three (3) years imprisonment with effect from the 13th day of August, 2001.

(D.V. Fatiaki)
JUDGE

At Labasa,
20th May, 2002.