State v Naitokarua [1994] FJHC 87; HAM0006t.1994s (29 July 1994)

IN THE HIGH COURT OF FIJI
(SUVA)
CRIMINAL JURISDICTION

MISC. CASE NO. HAM0006 OF 1994S

BETWEEN:

STATE
COMPLAINANT

AND:

1. ETONIA NAITOKARUA
2. VILIVO NAGANO
RESPONDENTS

Mr. D. Tuiqereqere for Complainant
Accused in persons.

SENTENCE

This is another sad case where the two accused had to use violence to satisfy their insatiable hunger for sex on the innocent victim in an isolated area and under the cover of darkness. Although liquor appears to be a factor in the commission of this offence the accused had no right whatsoever to intrude into the privacy of the victim.

There appears to have been reconciliation between the victim's family and those of the two accused persons through Fijian customs and tradition but that has no legal force except that the court could recognise it as a mitigating factor and nothing more. Having said that I cannot, however, ignore the importance of reconciliation in any case within any community as it serves as a vehicle for defusing tension, ill feelings and want of retaliation.

As I've said again and again the offence of rape has become very cancerous as its rate of increase is quite alarming.

The women and girls of this country must be protected and should be allowed to pursue their legitimate business unmolested by people like the two accused.

It appears that both accused have shown genuine remorse hence their ready plea of guilty saving the victim of this distasteful and sordid offence the embarrassment and ordeal of testifying in open court.

In arriving at the sentence which I consider to be appropriate in this case I've taken into account all the mitigating factors available to the accused I am also guided by the learned authors of The Principles of Sentencing, Second Edition by D.A. Thomas at page 113:

"The fact that the victim has forgiven the offender is not necessarily relevant."

Pritchard (1973) 57 Cr. App. R 492 (the complainant's subsequent attitude..... to the sentence is a completely irrelevant consideration).

The 1st Accused has one conviction relevant to this present offence i.e. for Attempted Rape for which he was incarcerated for 2 years.

The 2nd Accused is a first offender.

The sentence of the court is as follows:-

1st Accused - 7 years Imprisonment

2nd Accused - 6 years Imprisonment.

R.A. 28 days

S W Kepa
JUDGE

29th July, 1994

HAM0006T.94S