State v Silai [1996] FJHC 58; HAM0020j.1996s (8 October 1996)

Fiji Islands - The State v Silai - Pacific Law Materials

IN THE HIGH COURT OF FIJI

(AT SUVA)

MISC. CRIMINAL JURISDICTION

ACTION NO. HAM 0020 OF 1996

BETWEEN:

STATE
Complainant

ANpan>

MACIU SILAI Defendant

Lynda Tabuya for the State
Accused in Person

Date of He: 8th October 1996
Date of Judgment: 8th October 1996

On 3rd June 1996 the accused and one Poasa Yabaki were convicted in the Nausogistrate's Court of the rape rape of a woman named Luse Diwaqa on the 7th of May 1994 after a trial which extended for exactly two years.

While the accused was on bail during the hearing of that case in the company of another one Sakaraia Tamani on the 19th of December 1995 at Maumi Village Tailevu he committed rape on a 14 year-old girl named Vasemaca Aliwa. Initially he pleaded not guilty but on the 18th of July 1996 after he had been sentenced to 5 years imprisonment on the 3rd of June 1996 for the rape of the 7th of May 1994 he pleaded guilty to the present charge.

The facts relato the present charge are that on the 19th of December 1995 the victim went to her village lage church with two of her friends. At about 9 p.m. she was returning alone to her village and was met by the first accused Sakaraia Tamani who grabbed her hand and pulled her some distance. He then wrapped his sulu over the victim's mouth, dragged her to the nearby bush, pushed her to the ground and pulled off her under pants. He then sat on her thigh, pulled off his trousers and forcefully had sexual intercourse with her. She resisted but was overpowered by Tamani.

After Tamani had had intercourse with the v he called on the accused to take his turn which he did.

After this both the accused went e village followed by the victim whose mother reported the the matter to the Police and subsequently both accused were charged.

The first accused pleaded guilty and admitted the offence when he was charged. As I have said the present accused pleaded not guilty at first and only changed his plea to guilty on the 18th of July 1996.

Because the learned Magistrate considered that he should impose a higher sentencetence for which he had no jurisdiction he remanded the accused to this Court for sentencing.

He is now 22 years old and at the time s sentenced in respect of the first charge, the rape of thef the 7th of May 1994, he was undergoing a course of automotive engineering at the Fiji Institute of Technology and had two semesters to go before he could get his certificate of automotive engineering. He was doing practical work at Asco Motors and thought he might get a job there.

He knew ictim Vasemaca Aliwa because they both attended the same village church. He is the eldest iest in his family which comprises one sister and two brothers all of whom are still attending school. He said that his parents need him a lot to help them in their every-day life. He asks the Court to impose a concurrent sentence with that which he is now serving. If I were to accede to this request it would mean that the accused would serve no extra time at all so that the present proceedings would be pointless and would ignore the aggravating features of this rape.

In sentencing the accused on the first rape earned Magistrate quoted from part of the judgment of the Ethe English Court of Appeal in Roberts (1982) 1 WLR 133, when the Court said that rape is always a serious crime which calls for an immediate custodial sentence other than in wholly exceptional circumstances. The learned Magistrate then went on to summarise various decisions of the Courts which give an indication of what current practice ought to be where there are aggravating features. Some of these are:

(1) Where violence is used over and above the force necessary to commit rape.

(2) The rape is repeated.

(3) The Defendant has previous convictions for rape or other serious offences of s of a violent or sexual kind.

(4) The victim is very old or very young.

(5) The effect upon the victim whether physical or mental is of special seriousness.

He then said, and I agree, that where anyone or more of these aggravating features are present the sentence should be substantially higher than the figure suggested as the starting point.

Finally he referred to the extra distress which giving evidence could cause to a vi a victim so that a plea of guilty perhaps more so than in other cases should normally result in some reduction from what would otherwise be the appropriate sentence.

In this case after consistently pleading not guilty the accused changed his plea and thus saved his victim from the ordeal of giving evidence. For that he deserves some credit. Against that however is the fact that he did nothing to prevent his co-accused from assaulting their victim and once his co-accused had overcome the resistance of the young girl and raped her, the accused then took his turn to have intercourse with her.

The accused mave realised the possible consequences of his action in view of that fact that he was at that that time still standing trial on the earlier charge of rape. Notwithstanding that he had no hesitation in committing the second rape.

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It is well known that most victims of sexual assaults and rapes, particularly those who are comparatively young, frequently suffer psychological problems as a result of their ordeal. One common result is that young women or, young girls become suspicious and distrustful of men and reluctant to form any lasting relationships with them with a view to later marriage. Generally only time can heal this problem and if the young victim of this attack is so affected in her future relations with men as a result of this event, the accused and his co-accused must accept the responsibility for it. There are however some mitigating features one of them being that it was the co-accused who assaulted and overpowered their victim and not the accused. In all the circumstances I consider that a sentence of 8 years imprisonment should be imposed in this case but because of the mitigating features I have mentioned I direct that 4 years of this sentence be served concurrently with the sentence the accused is presently serving. This means that he will serve a total term of imprisonment of 9 years.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> I conclude by expressing the hope that as a result of his time in prison the accused wied will learn to respect the dignity of women not only as women but as human beings. If he does so as a result of his sentence then there may be some hope for him in the future.

JOHN E. BYRNE

JUDGE

Legislation and authorities referred to in jnt:

Penal Code Cap. 17 Sections 149 and 150.

Criminal Procedure Code Cap. 21 Section 222.

Roberts (1982) 1 WLR 133.

Mohammed Kasim Criminal Appeal No. 21/93.

Ham0020j.96s