IN THE HIGH COURT AT LABASA
NORTHERN DIVISION
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. HAA0003 OF 2005

BETWEEN:

HARI CHAND

Vs.

STATE

For Prosecution - DPP - Ms S. Shah
For Accused - Mr. A. Sen

JUDGMENT

The Appellant, who initially appealed only against sentence, now appeals against conviction and sentence. For the hearing of this appeal, Mr. Sen agreed at the request of the Legal Aid Commission to appear pro bono esse.

The Appellant was charged with the attempted rape of his daughter-in-law, Saleshni Devi Chand on the 21st of September 2004. The case was first called on the 22nd of September and he was given his right to counsel. Later that day he appeared represented by counsel for the Legal Aid Commission. He pleaded guilty.

The facts were outlined by the prosecution. They were that the Appellant has one son. He is a cane cutter at Waiqele. The son is married to Saleshni Devi. The Appellant and his son’s family live in the same compound at Waiqele, although in different houses. On the 21st of September 2004, the Appellant approached his daughter-in-law, who was sitting on her bed in her own house. She asked him to leave as he had previously tried to have sexual intercourse with her. He grabbed her, and forced her to lie down on the bed. He kissed her and asked her to have sexual intercourse with him. He lifted her dress up and pulled down his three quarter pants. She began to shout and he put his hand over her mouth. They struggled. They fell on the floor. The Appellant was on top of the complainant. He pulled down her underwear and kissed her on her vagina. She pushed him and managed to free herself. She ran out of the house and called for help at a neighbour’s house. She reported the matter to Police. He was interviewed. He admitted the offence and was charged.

The Appellant admitted these facts. Also tendered in evidence were the complainant’s medical report (which showed a 3 cm bruise over the thorax), the Appellant’s caution interview and the complainant’s statement to the Police. The complainant related the facts as outlined in court. She said that she saw the Appellant’s penis when he took off her underwear and she said that it was not erected. In his caution statement, the Appellant said he wanted to have sexual intercourse with the complainant. His account is similar to that of the complainant’s except that he said that at the time he pulled down his own shorts and underwear, he had an erected penis. It is not clear, whether counsel for the defence had consented to the tendering of any statements other than the medical report.

Counsel then mitigated. The Appellant was 53 years old with five married children. He denied any previous incident of indecent assault, or of annoying his daughter–in-law, and admitted one very old previous conviction. He expressed remorse, and said he suffered from asthma and chest pains. She asked for a non-custodial sentence and referred to a number of sentencing authorities in relation to the elderly.

The learned Magistrate referred to the guideline judgment of Joji Aunima v State Cr App No HAA0033.2000 which set the tariff for attempted rape as 12 months to 5 years. He picked a starting point of 3 years imprisonment. He reduced the sentence by 1/3 for the plea of guilty, good character and other mitigating circumstances. He increased the sentence to 3 years after taking into account the breach of trust and the significant age gap of 29 years between complainant and accused. He sentenced him to three years imprisonment.

Counsel for the Appellant appeals against conviction and his sentence. In essence his grounds are:

1.	The facts outlined are inconsistent with the Appellant’s caution statement, and invalidate the charge.

2.	The Appellant was incapable of having an erection and the full offence of rape was impossible. The conviction was therefore invalid.

3.	The sentence was harsh and excessive.

Also in the course of argument, counsel submitted that the learned Magistrate should not have permitted the tendering of the caution statement or the complainant’s plain statement.

The Conviction

It is quite correct that there is no record in the court file of how and why the caution statement of the Appellant, and the plain statement of the complainant, were tendered. Indeed the plea in mitigation suggests that counsel disputed some parts of the complainant’s statement in relation to an earlier incident. Where accused persons are unrepresented, Magistrates often ask the prosecution to tender the caution statement, to ensure that there is no available defence in it and to ensure that the accused is properly advised before he admits the facts. It is a less common practice where the accused is represented. However, if the prosecutor wishes to tender exhibits when the facts are outlined, that is a matter for the prosecution, the defence and the court to consider and decide upon. Such a practice is not wrong in principle, provided the exhibits are not disputed, and provided the court accepts them.

In this case, it does not appear that counsel was consulted although she was certainly aware of the exhibits because she referred to them in her plea in mitigation. I see no prejudice to the Appellant in the tendering of exhibits because counsel for the defence articulated her dispute with the facts, and the learned Magistrate placed no reliance on the disputed matter when he came to sentence. Similarly counsel did not tell the learned Magistrate that the caution interview was for some reason inadmissible, or untrue.

No do I find any significant dispute of fact which might affect the charge. Although the victim said the Appellant was wearing three quarter pants, the Appellant said he was wearing shorts and red underwear. Her lack of detail is not such that its suggests that there was no attempted rape.

Similarly, because the reference to the erection or otherwise of the penis, relates to different times during the incident, there is no necessary contradiction. I do not agree that any inconsistency invalidates the convictions.

Counsel said that the Appellant is incapable of having an erection, and that it is impossible for him to rape anyone. There is no medical evidence, or any other evidence to support this submission. Certainly, the Appellant did not see fit to tell his counsel about this in the lower court, or the Police in his caution statement. Indeed, he clearly told the Police that he had an erection at one stage during the incident.

Furthermore, even if it were the case that he was incapable of having sexual intercourse, the provision of Section 380 of the Penal Code are clear, and lay to rest, certainly in this jurisdiction, the age-old legal controversy surrounding the concept of attempting the impossible.

Section 380 provides:

“When a person intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence his is deemed to attempt to commit the offence. It is material, except so far as regards punishment, whether the offender does all that it 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.

It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence”.

There is no dispute that the Appellant intended to have carnal knowledge with the complainant. He clearly put that intention into motion, and did everything he could to execute his intention. All that was left was the penetration itself. The fact that he may not have had an erection is irrelevant. There is no evidence that he was physically incapable of such erection and he himself clearly thought otherwise during his Police interview. To say that achieving full penetration was possible, does not constitute a defence to the charge of attempted rape, unless of course the accused knew he could not penetrate and had no intention of doing so. That is not the case here.

I consider therefore that there is no merit in the appeal against conviction. 

Sentence 

The learned Magistrate correctly directed himself on the tariff of attempted rape. As I said in Joji Aunima v State (supra) the tariff is 12 months to 5 years. Sentences at the upper hand of the tariff should be passed where gratuitous violence was inflicted, where a weapon was used, where there was a gross breach of trust or where there was a large age gap between complainant and offender.

In this case the starting point of 3 years imprisonment was correct in principle, because of the gravity of the attack. Adequate reduction was made for good character and the plea of guilty. The aggravating factors were very serious indeed. The attempted rape of his daughter-in-law by the Appellant was a despicable act which deserved the condemnation of the court. The breach of trust, the attack, in the complainant’s own home, and the age gap justified the sentence imposed. Despite the Appellant’s age, the sentence was not manifestly excessive nor was it wrong in principle.

Result

For the reasons given in this judgment, this appeal is dismissed.

Nazhat Shameem
Judge

At Labasa
2nd June 2005