Vakalalabure v The State [1996] FJHC 98; Haa0046j.95b (8 February 1996)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 46 OF 1995

Between:

1. TEVITA VAKALALABURE
2. JOAPE DRAUNA
3. ATONIO MAINAVOLAU
4. JOSUA DOVIDUA
5. INOKE MAIMASIRUA
Appellants

- and -

STATE
Respondent

The Appellants in person
Ms Laisa Laveti for the Respondent

JUDGMENT

This is an appeal by the five abovementioned appellants against their sentence of 5 years imprisonment passed on them by Magistrate Salesi Temo Esquire sitting at Magistrate's Court at Taveuni on 8 August 1995 on their own plea for the offence of rape contrary to section 149 of the Penal Code.

The appeal is essentially against severity of sentence.

Each accused has asked for reduction of sentence on the ground that it is harsh and excessive.

The learned counsel for the State has opposed the appeal. She said that this was a "gang rape". It was a serious case of rape and the sentence was justified and was within the guidelines in MOHAMMED KASIM and THE STATE (Crim. App. No. 21/93 F.C.A.) The sentence she says is neither harsh nor excessive.

I have considered the arguments put forward by each appellant.

The victim in this case was a 16 year old girl. It was a gang rape. The appellants have committed a very serious offence and they do not deserve any sympathy from the Court. The fact that they had pleaded guilty had been taken into account by the learned Magistrate and all that was said in mitigation, and he considered that he ought to exercise his maximum powers of sentencing.

The law provides for life imprisonment for this type of offence. Had the Magistrate wanted he could have remitted this case for sentencing by the High Court but he thought that five years is enough for you. You should be aware that this Court has the power to enhance your sentence but I will not do so in this case. You are fortunate that you have received a light sentence despite the fact that some of you are very young. In this case the ages are 35 years, 17 years, 21 years, 22 years and 18 years respectively.

It is a matter of great concern to the Courts that it is the very young who are the worst offenders these days when it comes to rape.

I might as well sound a warning that unless there are exceptional circumstances, offenders should not expect any lenient sentence from the Courts for rape and allied offences. I repeat what I said in the rape case of STATE and ANTONIO SALELE & ANOR (Misc. Cr. Case No. 4/95 [Labasa]) when it was before me for sentencing:

"The number of rape cases that have come before the courts have been on the increase year by year. The streets are becoming unsafe for young girls and women for this reason. The sentences meted out in the past are not having the desired effect. The courts ought to and are now taking a very serious view when it comes to sentencing in rape cases and other related offences. The Fiji Court of Appeal has given certain guidelines with the starting point of seven years "without aggravating or mitigating features".

We would all like to see the day when our girls and women feel safe to walk the streets without fear of being raped or molested in any manner. I for one have no sympathy whatsoever for those who commit this type of offence. It seems that these days the only way to deter others from committing this offence is to visit them with adequate sentences.

The fundamental purpose of the criminal law is to protect the community. This can be done by making the punishment fit the offence and the offender thereby promoting respect in the community for the justice of the criminal law. Hence the need for the court to have regard to the need for general deterrence.

The offence that you have committed and for which you stand convicted by the learned Magistrate is so heinous that the fact the crime was a first offence or that you have not been to prison before for any length of time are of little relevance as the guidelines in KASIM indicate."

For the above reasons I see no merit in your appeals and they are therefore dismissed.

D. Pathik
Judge

At Labasa
8 February, 1996

HAA0046J.95B