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Marawa v State [1998] FJHC 179; Haa0024.1998 (16 April 1998)

IN THE HIGH COURT OF FIJI
(At Suva)
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 024 OF 1998

BETWEEN:

VERENIKI MARAWA
RESPONDENT

AND:

THE STATE
APPELLANT

Respondent - In Person
DPP - For the State

JUDGMENT

RE: MR VERENIKI MARAWA

BACKGROUND:

1. This Matter concerns an Appeal by the State against the Sentence imposed on Mr Marawa by the Magistrate sitting at Suva on 11^th September 1997.

The Respondent was charged with Attempted Rape allegedly committed on 8^th August 1997. He appeared before the Magistrate on 14^th August 1997 and pleaded guilty. (Maximum penalty for his Offence is 7 years imprisonment).

The Magistrate's Record shows the Brief Facts that were read out and admitted by the Respondent. The Magistrate imposed a Prison Sentence of 2.5 years which he suspended for 3 years. In addition he made a Compensation Order fro $200 in favour of the victim.

GROUNDS OF APPEAL

2. The State Counsel submitted the following grounds:

(1) that the Magistrate had erred in law in suspending a Sentence of 2.5 years.

(2) that the Sentence was manifestly lenient given the Circumstances of the case;

(3) that the Magistrate erred in principle by suspending the prison sentence given the previous criminal background of the Respondent.

CIRCUMSTANCES OF THE CASE:

3. The Circumstances of this Matter (as set out in the Statement of Facts recorded in the Magistrate's Notes) are these.

On 8^th August 1997 at about 9.00am in Dravuwalu Village the Respondent to this Appeal accosted an 18 year old lady. He pressed her neck, pull down his pants and said he wanted to have sex with her. The Girl cried out and some women nearby came to her aid. The Respondent ran away.

These outline facts given, with which the Respondent agreed indicate in reality a "borderline case" of attempted Rape. It is arguable that given the circumstances the Respondent should perhaps have been charged with Indecent Assault. I assume the present case is put on the basis that if the Respondent had not been interrupted by the women he would have gone on to commit rape.

The contents of the Medical Report on the victim are hearsay. The Doctor was not called to give evidence in Court and the Medical Report details were not included in the Facts read to the Respondent and agreed by him.

Whether the Respondent would have agreed all the details in the Medical Report is not known. The position as it now stands is that the Respondent must be sentenced exclusively on the Facts read out and agreed.

If the Magistrate wanted the matters contained in the Medical Report included, he should have amended the Statement of Facts to see if the Respondent agreed with them; alternatively the Doctor should have been called and his evidence given.

RESPONDENT'S SUBMISSION & MITIGATION

4. The Respondent repeated the mitigating points he put before the Magistrate. Namely that he is 43 years old; a married man with 6 children all at school.

A Farmer. Admitted previous Convictions in 1983 & 1989 for Rape. Now asked for leniency for the present offence. There was a letter from the Respondent augmenting this mitigation. The Respondent also presented to me today two letters – one from the Assistant Roko Naceva and the other from his Village Headman. Both of these letters were translated for me and read out in Court.

APPEAL RULING:

5. Unfortunately the Magistrate exceeded his jurisdiction in imposing a 2.5 years Sentence and suspending it. I strongly urge Magistrate to examine Section 29 and 30 of the Penal Code before making any decisions concerning Suspended Sentences.

The proper approach is this. The Magistrate should first consider whether the Offence merits imprisonment at all. If it does then a decision should be made about the level of Sentence.

If the level decided is 2 years or less then (and only then) can consideration be given to the Suspension of the Prison Sentence.

The process should be in that order, because it is wrong to impose a longer or shorter sentence of imprisonment simply because it is to be suspended.

In this case the Magistrate selected 2.5 years. He failed to check Section 29 of the Penal Code to see if this length of Sentence could be suspended.

Further, even though the Magistrate purported to impose a Suspended Sentence, there is nothing in his Record to indicate that he gave any explanation in ordinarily language to the Respondent about the meaning of the Suspended Sentence and possible later activation. Failure to give this explanation may render the Suspended void (S.29(4) Penal Code).

REVIEW OF SENTENCE:

6. I must now review the Sentence, and the Compensation and Order made in this case. I have taken into account the mitigation expressed by the Respondent both today and earlier before the Magistrate. I take into account the Criminal record of the Respondent - for similar offences. In my view this Conviction for attempted Rape in August 1997 merited imprisonment. On the agreed facts it is not the most serious case of its kind, and I would adopt a "Starting Point" of 21 months imprisonment. I would reduce that period to 15 months for the plea of guilty, the general mitigation expressed, the remorse shown, and the double jeopardy.

I understand the Compensation of $200 ordered by the Magistrate has already been paid. This Financial Order is not normally one I would combine with immediate imprisonment. However, it would be administratively difficult to recover the $200 and I therefore further reduce the imprisonment sentence to 12 months. I would not suspend the Sentence.

SUMMARY

7. (1) The 2.5 years Sentence Suspended for 3 years is quashed.

(2) An immediate Sentence of 12 months imprisonment is to be substituted.

(3) To that extent the Appeal by the State is allowed.

Peter Surman
JUDGE

At Suva
16^th April, 1998