Clearly the conviction of rape cannot stand. The facts do not disclose the offence, and the conviction is quashed.
The provisions of section 319(1) of the Criminal Procedure Code provide that, at earing of an appeal, the High Court may “confirm, reverse orse or vary the decision of the Magistrate’s Court, or
may remit the matter with the opinion of the High Court thereon to the Magistrate’s Court, or may order a new trial, or may order
trial by a court of competent jurisdiction, or may make such order in the matter as it may seem just, and may by such order exercise
any power which the Magistrate’s Court might have exercised.”
These very wide powers given to the High Court, on a criminal appeal, allow the court, in effect to substitute a finding which the
magistrate’s court might have reached. In this case, it allows a substitution of a conviction of attempted rape, for the conviction
of rape. The Fiji Court of Appeal exercised this power in State -v- Apolosa Rainima FCA 577/94. In that case, the accused had been tried in the High Court, on a charge of rape. The accused admitted to an attempt in
the course of the
trial. However, the alternative opinion of a conviction of the lesser offence of attempted rape was not puthe assessors, and they
rety returned an opinion of not guilty of rape. On an appeal by the State, the Court of Appeal held that a conviction on the accused’s
own evidence, of attempted rape, was justified, set aside the acquittal and substituted a conviction for Attempted Rape. The case
was remitted to the High Court for sentencing only.
In this appeal, the Appellant agreed to attempting to penetrate. The medical report shows bruising with fresh bleeding aroue vagina,
and superficial bial bruising. The hymen was intact. The doctor wrote in her report that: “It is possible that there was force used
to have vaginal sex but there was no vaginal penetration.”
The legal definition of an attempt is provided by section 380 of the Penal Code. It is:
“When a person, intending to commit an offence, begins to put his intention into execution by means adato its fulfilment, and mani
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.”
This definition of “attempt” is comparable to the common law definition of an attempt in England before the passing of the Criminal Attempts Act 1981. The test was whether an act was more than merely preparatory, and whether there was any further act on the defendant’s part remaining
to be done before the completion of the crime (R -v- Eagleton (1855) Dears 515).
Lord Diplock in R -v- Stonehouse (1977) 2 ALL ER 909 said:
“The constituent elements of the inchoate crime of an attempt are a physical act by the der sufficiently proximate mate to the complete
offence and an intention on the part of the offender to commit the complete offence.
/p>
Acts that are merelparatory to the commission of the offence are not sufficiently proximate to constitute an a an attempt. They do
not indicate a fixed irrevocable intention to go on to commit the complete offence unless involuntarily prevented from doing so.”
The Court of Appeal in Apolosa Rainima (supra) accepted this to be the test n attempt, under section 380 of the Penal Code.
<
Applying that test, the Appellant should clearly have been convicted of an attempted rape. He tried to penetrate the vagina, but was
unable to do so. He then proceeded to have anal intercourse.
The offence being clear on the admitted f I therefore substitute a conviction of attempted rape for the conviction of rape on count
ount 1.
I consider that section 309 allows the court to reconsider the matter of sentence. In this appeal, the Appellas repeated the mitigation
tion he made in the magistrate’s court, and has expressed remorse. In re-considering sentence, the High Court can impose a sentence
which the Magistrate might have imposed within the jurisdiction of the Magistrate’s Court.
Sentence
The maximum sentence for Rape is life imprisonment. The maximum sentence for Attempted Rape is seven years imprisonment. The maximum
sentence for Unnatural Offence is fourteen years imprisonment.
The Appellant has a number of previous convictions, some involving violence. He is a 35 year old man with four children. He said that
he and his sister (the complainant’s mother) have now reconciled in the traditional way and that he had four children to look after.
He expressed remorse.
Counsel for the State said that the complainant was an 11 year old child wd trusted her uncle, the Appellant. He said that the medicaedical
report showed that the psychological trauma of the incident might never heal, and that the public abhorred offences against children.
He said that a 5 year term for the Unnatural Offence was justified because of the gravity of the offence, the need to protect children
and the need to deter would-be child abusers.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The starting point for Rape is seven years imprisonment. The Magistrate’s Court, apto pass sentences of five years imprisonment for
rape, unle unless there are exceptional mitigating circumstances. They are limited, of course by jurisdiction to five years imprisonment.
However, given the maximum sentence for attempted rape, I consider that four years imprisonment might be a logical starting point.
That point would then be increased if there was aggravating features, or reduced if there were mitigating factors.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Aggravating factors would be, the violence of the attempt, any relationship of particular trust between the accand the complainant,
the yohe youth or age of the complainant (children and older women being particularly vulnerable), any disability suffered by the
complainant, and any psychological trauma suffered by her.
Mitigating factors would be a plea of guilty, any expression of remorse, any attempt to make reparation for the harm done, andaccused’s
antecedent historistory.
In this case, there were many aggravating fac The Appellant abused his position of trust, and tried to rape his own niece. The complainalainant
was only 11 years old. The facts outline her extreme distress while the offence was being committed. The medical report shows physical
injury and severe psychological trauma. She may never recover from the latter.
Clearly the mitigating circumstances are less than impressive. The Appellant pleaded guilty. This saved the complainant from the additional
trauma of giving evidence. He has also expressed remorse, and has reconciled with his sister. Unhappily such reconciliation cannot
help the complainant in her recovery after the attempted rape.
Taking all these matters into account, I consider the four year term imposed by the learned Magistrate for Rape, to be more appropriate
for an Attempted Rape. Although the violence of the attack, and the relationship between the Appellant and the child might have warranted
a much higher term, I have given considerable discount for the plea of guilty. I also note that the Appellant has no previous convictions
for acts of sexual violence. For these reasons I consider a term of four years imprisonment, appropriate on count 1, and I sentence
the Appellant accordingly.
On count 2, I consider the sentence of five yemprisonment appropriate, although the Appellant might have received considerably more
if heif he had been sentenced in the High Court. In Stephen Peter Jones (1991) 92 Cr. App. R. 288, the English Court of Appeal considered the appropriate sentences for sexual offending against children. In that case, the court
held that the appropriate sentence for buggery with children was six years imprisonment. In Maleli Qiladrau Crim. App. No. 48/2000 Pathik J considered a sentence of 4½ years imprisonment to be appropriate for unnatural offence with a boy.
In the circumstances, I consider the five year term on count 2 entirely appropriate. Furthermore, looking at the totality of the sentence
( a total of nine years imprisonment) I also consider that a consecutive sentence reflects the gravity of the offending, the abhorrence
that the public holds for the offences, and the public interest in passing a deterrent sentence in offences against children.
For these reasons, the sentences are to run consecutively.
The conviction on count 1 is quashed and is substituted with a conviction for Attempted Rape. Thtence of four years imprisonment is
imposed on count 1. The. The sentence of five years remains for count 2. Both sentences are to be served consecutively.
Nazhat Shameem
JUDGE
At Suva
14th November 2000
HAA0085j.00s
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