A 58-year-old man incorrectly cleared of rape but found guilty of a lesser charge had his term increased from 15 months to four years after his acquittal was overturned on appeal.

The victim was raped, the appeals court declared, arguing that this would not necessarily mean full penetrative sex took place, unlike what the Magistrates’ Court ruled.

Mr Justice Michael Mallia said rape occurs the moment that penetration happens, even if this was minimal.

The case goes back to February 27, 2007, when the man, who cannot be named because he was related to the victim, took the 18-year-old to a bedroom and removed her clothes. According to his police statement, they then had sex.

After he had been sentenced, two appeals over the judgment were filed. The first was filed by the Attorney General who requested he was found guilty of rape and punished accordingly and the other was by the accused who said he should not be imprisoned because he suffered from claustrophobia.

In dealing with the appeal from the AG on the merits of the case, Mr Justice Mallia said he could not understand why the first court had not taken into consideration his police statement.

Although he had not been assisted by a lawyer during the investigations, the law did allow for the statement to be taken into consideration if it was deemed to be legal and acceptable.

Furthermore, there was other evidence to be used and not just the statement, the judge said.

He said that in the statement, the man admitted to having sex with the girl which corroborated her version of events when she testified. The judge said that claustrophobia was not reason enough to lower the jail term and that rape did actually occur. He found him guilty of rape and increased the jail term to four years.

When treating the man’s claim that he should not go to jail because of his phobia, the judge said it was a fickle argument to make and that everyone would try and use this as an excuse to avoid incarceration.