Saumaimuri v The State [2004] FJHC 56; HAA0015J.2004S (5 March 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0015 OF 2004S

Between:

QALITA SAUMAIMURI
Appellant

And:

THE STATE
Respondent

Hearing: 27th February 2004
Judgment: 5th March 2004

Counsel: Appellant in Person
Ms P. Madanavosa for State

JUDGMENT

The Appellant pleaded guilty to the following offences:

FIRST COUNT

Statement of Offence

INDECENT ASSAULT: Contrary to Section 154(1) of the Penal Code, Act 17.

Particulars of Offence

QALITA SAUMAIMURI, between 8th day of June, 2003 and 9th day of June, 2003 at Nabua in the Central Division, unlawfully and indecently assaulted AKATA LIKU.

SECOND COUNT

Statement of Offence

RAPE: Contrary to Sections 149 and 150 of the Penal Code, Act 17.

Particulars of Offence

QALITA SAUMAIMURI, on the 11th day of June, 2003 at Nabua in the Central Division, had carnal knowledge of AKATA LIKU, without her consent.

The case was first called on the 13th of June 2003. The Appellant pleaded not guilty. The matter was adjourned to the 27th of June 2003 and then to the 11th of July 2003, when he was granted bail.

On the 25th of November 2003, when the matter was set down for trial, the Appellant changed his pleas. The facts outlined were that the victim, a 19 year old girl lived with the Appellant and his family. The Appellant’s wife left for Koro Island and the victim asked to sleep with a neighbour and one Maria Lisi. The Appellant then approached her as she lay sleeping and touched her breasts and private parts. The victim woke up and told him to leave her alone but he continued to indecently assault her. The victim then complained to her sister who reported the matter to the police. This occurred on the night of the 8th of June 2003.

Three days later while the victim lay sleeping with her sister, the Appellant came onto the bed and had sexual intercourse with the victim. He was drunk. She reported the matter to the police and was medically examined. The medical report said that the victim’s hymen was not intact, there was a whitish discharge on the vagina and there were lacerations and injuries in the vaginal area.

The Appellant accepted these facts. He was a first offender. In mitigation he said that he had sought forgiveness from the victim’s parents and they had forgiven him. He is 38 years old and has been married for 10 years. The complainant was in court and confirmed that she had forgiven him.

The learned Magistrate then sentenced the Appellant to 2 years imprisonment on Count 1 and 2 years imprisonment on Count 2 to be served consecutive to each other.

The Appellant says that this sentence is harsh and excessive and has appealed against it. I cannot agree with him. The sentences passed are certainly wrong in principle but they are not harsh or excessive.

Firstly, the sentences passed are the same for indecent assault and for rape. This cannot be correct. The tariff for indecent assault in Fiji is 1-3 years and it is a much less serious offence than rape where the tariff is 5-7 years for the rape of adult women with a starting point of 7 years, and 9-11 years for the rape of children with a starting point of 10 years. There can be no logical reason why the Appellant was given the same sentence on each of these counts.

In respect of Count 1, a starting point of 1 year might have been justifiable because of the non-penetrative nature of the assault, and after considering aggravating and mitigating circumstances, an 18 month term would have been appropriate.

In respect of Count 2, a starting point of 7 years imprisonment (Mohammed Kasim v. State Crim. App. No. 21/93, Sisa Kanaveilomani v. State Crim. App. No. 15/01) would have been appropriate. Although there was a gross breach of trust, the previous good character of the Appellant might have justified a 5 year term. The 2 year term imposed is so inconsistent with comparable sentences imposed, that it must be varied. However because there is no cross-appeal by the State, I will reduce the 5 year term further by one year so that the total term the Appellant will have to serve is no longer than that originally imposed by the lower court. However I must emphasise that a four-year term is below the tariff for rape and is only being imposed in this case because I consider that it would be unjust to increase sentence without a cross-appeal.

The sentence of the lower court is quashed. It is substituted with an 18 month term on Count 1, and 4 year term on Count 2 to be served concurrently. The Appellant’s appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
5th March 2004