Home | Databases | WorldLII | Search | Feedback Court of Appeal of Fiji

Koroitamana v State [2014] FJCA 212; AAU119.2013 (5 December 2014)

IN THE COURT OF APPEAL
[On appeal from the High Court]

CRIMINAL APPEAL NO. AAU119 OF 2013
[High Court Case No. HAC 8/10]

BETWEEN:

SAILASA KOROITAMANA
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA

Counsel : Mr. S. Waqainabete for the Appellant
Mr. L. Fotofili for the Respondent

Date of Hearing : 20 October 2014
Date of Ruling : 5 December 2014

RULING

[1] This is an application for an extension of time for leave to appeal against conviction and sentence. Following a trial, the appellant was convicted on a charge of rape and sentenced to 8 years' imprisonment with a non-parole period of 6 years by the High Court at Lautoka. The sentence was pronounced on 23 August 2013. The application for leave to appeal was filed in person by the appellant on 25 September 2013. The application is late by two days. Since the delay is not significant I grant the appellant an extension of time to seek leave to appeal against conviction and sentence.

[2] The issue for this Court is whether the grounds of appeal advanced by the appellant are arguable before the Full Court.

[3] The sole ground of appeal against conviction is:

"The Learned Judge erred in law and in fact when he did not correctly summed up to the assessors the Appellant's case through his evidence in the trial and that was the Appellant denied having carnal knowledge with the complainant, without the complainant's consent and that at the time of the sexual intercourse the Appellant knew that the complainant was not consenting or was reckless as to whether she was consenting."

[4] The ground raises two contentions, which in my judgment, are contradictory. The first contention is that the appellant denied having sexual intercourse with the complainant. The second contention is whether the appellant knew the complainant was not consenting or was reckless as to whether she was consenting.

[5] The complainant was distantly related to the appellant and his wife. She called the appellant uncle. On 11 October 2008, she went to the appellant's home in Ba to stay overnight. The following morning she decided to return to her home in Lautoka. As per an earlier arrangement, the appellant accompanied the complainant to the bus shelter around 3am on 12 October 2008, from where she was going to catch a bus to her home. When the complainant arrived at the bus shelter, the appellant raped her. While she was being raped, the appellant got distracted by a passing vehicle. The complainant managed to escape and take shelter at the closest house. She immediately reported the matter to the police. The complainant was medically examined on the same day. According to the examining doctor, she found the complainant's vaginal injuries were consistent with forceful sex.

[6] The appellant gave evidence. He admitted that he accompanied the complainant to the bus shelter to drop her off, but when they arrived at the shelter, the complainant for no reason ran away to the nearest house. When the complainant ran away, he returned home. He denied having sexual intercourse with the complainant.

[7] The learned trial judge directed the assessors that they could convict the appellant if they were satisfied that the appellant had sexual intercourse with the complainant without her consent. The assessors were also directed that even if they rejected the appellant's evidence as not true, they could only convict if they were satisfied of the guilt on the evidence led by the prosecution. These directions were tailored according to the issues raised at trial. At no stage there was an issue that the appellant did not know the complainant had not consented to sex. His evidence was that he did not have sexual intercourse with the complainant at all. In these circumstances, any directions on knowledge would have confused the assessors.

[8] The issue was the credibility of the complainant. The assessors and the trial judge found her credible and accepted her evidence as true after the appellant's case was fairly put to them. The contention that the trial judge did not fairly put the appellant's case to the assessors is not arguable.

Sentence appeal
[9] The sole ground of appeal against sentence is that the trial judge erred in law for not giving a separate consideration to the appellant's remand period in sentence. The appellant's remand period was one month and five days.

[10] The appellant's remand period was considered as part of his mitigating factors. The only compelling mitigating factor present was the appellant's previous good character. Nevertheless, the learned trial judge considered the appellant's personal circumstances (age, relationship, children, bread winner) as mitigating factors. A total discount of 2 years was given for the mitigating factors. When the length of the remand period is deducted from the 2 years, the total discount for the mitigating factors was 1 year and 11 months.

[11] The appellant's contention that the remand period should be deducted separately from the mitigating factors is not supported by any principle of sentencing. The principle of sentencing is that the remand period is a relevant consideration and allowance in sentence should be made for that fact. In this case the learned trial judge considered the remand period and made appropriate allowance for that fact as part of the mitigating factors.

[12] This ground of appeal is not arguable.

Result
[13] Leave to appeal against conviction and sentence is refused.

Hon. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Office of the Director of Legal Aid Commission for Appellant
Office of the Director of Director of Public Prosecutions for State