Marengo v R (SCA 10 of 1995) [1995] SCCA 33 (19 October 1995)

IN THE SEYCHELLES COURT OF APPEAL ROBERT MARENGO APPELLANT V. THE REPUBLIC RESPONDENT Criminal Appeal No. 10 of 1995 Mr. A. Derjacques for appellant Mr. A. Fernando for respondent JUDGMENT OF THE COURT Appellant was prosecuted before the Supreme Court for the offence of rape in breach of section 130 and punishable under section 31 of the Penal Code. It was alleged that on or about the 15th day of December appellant knowledge of had carnal 1992 at Ma Pavillon, one Stella Priscilla without her consent. Port-Louis In a considered judgment the learned Chief Justice who heard the case judgment found appellant guilty of the offence and sentenced him to undergo 10 years imprisonment. The judgment of the learned Chief Justice is being challenged on the grounds that (1) the conviction is against the weight of the evidence; (2) although the Judge warned himself about the requirement for corroboration he should only have convicted in the circumstances of the case, if such It was insufficient on these facts to evidence was found. evidence; and (3) the place reliance on the complainant's sentence of 10 years imprisonment was manifestly excessive. The prosecution relied entirely on the evidence of the complainant to prove its case. complainant said that Robert Marengo, appellant in this case, In her evidence called at her place, on 15th December 1992, posing as a -2- soldier who was looking for two army officers who had escaped' in the vicinit y of her house. He enquired whether she had seen them. Complainant said she had not seen them. He left, and com p lainant went to her school where she was a physical Education Instructor. When she reached her school she was informed that there was a telephone call for her from her home. She suspected that the call was connected with the visit of appellant to her place in the morning. She enquired from her home and was told that the 'soldier' (i.e. appellant) was saying that they were harbouring the army officers who had escaped. Complainant sought the advice of the principal and the police at the Beau Vallon Police Station and they advised her to go home and find out what was the matter. When she returned home she saw appellant who was with her cousin Jimmy. Appellant told her that he had found out the army officers who,had escaped and that they had been arrested. Appellant further said that the army officers had ' spent the night at her place and they left in the morning. Complainant got very scared on hearing all this. Appellant asked her to accompany her to a place where she would have to give the a statement to two high army officers in connection with army officers who had escaped. She reluctantly accompanied appellant. Her two sisters and her cousin Jimmy also accompanied them. On their way, appellant asked her sisters and cousin to wait at a certain spot. Appellant took complainant to the house where allegedly the two high military officers were. After walking for some distance appellant asked her to wait for some time on the ground that the high military officers had been out to see the two army officers who had escaped., After waiting for some 30 minutes she told appellant that she was going back to her sisters and cousin. Appellant then asked complainant to make a deal with him. She declined and started going back towards the spot where she had parted with her sisters and cousin Jimmy. Appellant followed her. At a certain distance appellant caught hold of her hands and pulled her towards him. Complainant asked him to leave her hands. She struggled running. Appellant ran after her caught her, placed his hand round her freed herself started and and neck as, if to strangle her. She put up a strong struggle but appellant swore at her and threatened to kill her. could not struggle long as appellant, was much stronger for She than her. The ground was slippery, she was overpowered and was pushed on the ground. Appellant took out her clothes and raped her. After ravishing her appellant warned complainant that if she would report the case he would kill her. complainant to tell her sisters and Complainant under the grip cousin that everything was O. K. Appellant told did what appellant told her. after she had happened. She did not tell her When she reached had a bath she related to her cousin Jimmy of fear sisters and Jimmy about what had happened. home what death uttered to her matter to the police. Her cousin Jimmy told her not to go to the police in the circumstances. She admitted that when a police officer from Beau Vallon Police Station called to out what had happened she said everything was O. K. The day on the advice of her cousin Sinon she reported the find next matter to the police and she was taken to the hospital. She also told Jimmy about the threats of by appellant if she would report the The doctor who examined complainant found a "suck mark" which is commonly on the front of the throat. He also found 5 tears in her hymen which were bleeding. a "love bite" called Expatiating on the grounds of appeal counsel for not should that the that there circumstances of the case are appellant contended such have been a conviction without corroboration. He referred to the "love bite" on the person of the complainant which in his view would support the appellant's version, that there He also referred to the failure on the part of complainant to report the incident to and cousin immediately after the occurrence, her her sisters was consent. failure to go to the police the same day. lack of evidence to support or indicate struggle or violence In his view the • -4- He We do not is suggestive of the version that there was consent. also mentioned there was no evidence of stress. find any merit in the submission of Counsel. Chief Justice after analysing the evidence believed every The learned word that complainant said in Court. He gave himself the warning of convicting on the uncorroborated testimony of the complainant. Corroboration of the evidence of a complainant is not essential before convicting. From the evidence accepted by him the learned Chief Justice rejected the defence of consent and found appellant guilty of rape. He cannot be faulted for reaching this conclusion. was 31 years As regards sentence we would point out that appellant at the time of the commission of the age of offence. Complainant was a virgin of 19 years. The victim was "tricked and lured to a secluded place" when she was savagely raped. In March 1989 complainant was sentenced to 5 years imprisonment for rape. i.e. 3 months after his release from prison he committed the No sooner he was released present offence. Counsel has cited a number of cases of rape of sentences varies, the longest sentence where the length being of six years. Passing sentence is not an exact Previous cases as to sentencing can be relevant science. and of some help but each case must be judged on its own facts. manifestly the punishment passed on him. do We excessive. find the sentence passed in this case In our view appellant richly deserved We dismiss the appeal against not both conviction and sentence. G. GOBURDHUN GOBURDHUN (PR SIDENT) (JUSTICE OF APPEAL) Ultdatict, (JUSTICE OF APPEAL) Delivered on the day of October, 1995.