IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0044 OF 1994

Between:

JOHN PHILIP PETER
Appellant

And:

STATE
Respondent

Counsel: Mr. Matawalu for Appellant
Mr. Shafiq for Respondent

Hearing: 13 April 1995
Decision: 13 April 1995

ORAL DECISION OF PAIN J.

On the 16th June 1993 the Appellant was convicted in the Magistrates Court on a charge of rape. On that day he was sentenced to three years imprisonment. He subsequently appealed to this court against his conviction and sentence. At the hearing today his appeal against conviction has been abandoned. I have heard submissions on the appeal against sentence.

It must be said that this was a serious rape. I do not propose to traverse the facts. Suffice it to say that the complainant was dragged to a secluded spot by the Appellant and others. Her clothes were removed. Two persons held her down and the Appellant raped her. Others then followed and raped the girl as well.

This court and more particularly the Court of Appeal have made it clear that the offence of rape will be punished by lengthy terms of imprisonment. Counsel have referred to the Court of Appeal decision of Mohammed Kasim v The State (Criminal Appeal No. 21 of 1993) which sets that the starting point for sentencing on a charge of rape at seven years. That decision was delivered after the Appellant in this case had been sentenced. However, in that Court of Appeal decision reference was made to the practice in Fiji of following the guidelines in the case of Billam (1986) 8 Criminal Appeal Reports (S) 48. In that case the starting point was set at 5 years.

In this particular case that I am concerned with, an aggravating feature was that this was an attack on the complainant and rape of her by more than one person. There is no allowance for a plea of guilty and showing of remorse. The Appellant subjected the complainant to the trauma of a defended hearing and has not expressed regret. The only matters in his favour were that, as far as I am aware, he had no previous convictions and at the time of the offence, he was aged 18 years and 9 months and 21 years of age at the time of sentencing.

Having regard to all these matters, it could be said that a more substantial sentence than 3 years imprisonment could have been imposed.

Counsel on behalf of the Appellant refers to a number of matters which he submits ought to be taken into account in reducing this sentence. He referred to the delay in the trial in the Magistrates Court of something like two years. This is most unfortunate particularly as, from a reading of the record, it is apparent that the trial could and should have been heard earlier. It is also pointed out that during this period the Appellant lost his job. However, I do not see any substantial mitigation in these circumstances. A further submission was made that the complainant was accustomed to sexual intercourse. I question the extent to which this is mitigatory. However, I note that the Magistrate did make reference to this in his sentencing remarks. It is also submitted that there is no evidence of damage or emotional trauma to the complainant. No doubt there may be varying degrees of the effect of rape on a victim. However, forceful rape by a group of people, even on a girl with prior sexual experience, must be traumatic and could be expected to have some detrimental emotional effect.

Even considering all these matters, it must be said that the sentence of three years' imprisonment is nevertheless a very light sentence. In view of what I have said, it cannot be regarded as manifestly excessive. If anything it errs on the side of leniency.

For these reasons the appeal is dismissed.

JUSTICE D.B. PAIN
HAA0044D.94S