State v Mototabua [2004] FJHC 86; HAC0020Y.2002S (6 April 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0020 OF 2002S

STATE

v.

ELIKI MOTOTABUA

Hearing: 29th March 2004
Sentence: 6th April 2004

Mr. N. Lajendra for State
Accused in Person

SENTENCE

Eliki Mototabua, you have been found guilty and convicted of the abduction, secret confinement for 4 days, and rape of Mereani Radovu between the 5th and 9th of April 2002.

You abducted Mereani by forcing her into a taxi at the Nausori Bus Stand and taking her to your house. You then kept her there by a combination of assaults and threats, for 4 days. In those four days you raped her at least five times until you released her on the 9th of April 2002. In the course of the wrongful confinement, you assaulted her by punching her, and beating her with an iron rod, causing multiple injuries on her body. While raping her you caused her to receive injuries to her vagina, and to develop a cervical and vaginal infection. She was hospitalised as a result of her injuries and suffered psycho-emotional trauma which caused her and her family great distress. She was forced to leave Suva as a result of her experiences.

Your list of previous convictions, which date from 1995, include one conviction for attempted rape. It is clear to me that you are a danger to society, and in particular a danger to women and girls.

The starting point for rape in Fiji is 7 years imprisonment. The maximum sentence for abduction is 7 years imprisonment. The maximum sentence for abducting with intent to wrongfully confine is 7 years imprisonment.

I have taken into account the mitigating factors you put forward. They are that you are a law student at the University of the South Pacific, that you are an only child from a broken family, that you have had to find money to finance your studies and that you decided to study law to help your community. You have asked for a suspended sentence to allow you to complete your studies.

Count 1

This is one of the worst cases of abduction I have had to consider. The use of misrepresentations and coercion and the assaults as you were dragging the victim up the hill call for a deterrent sentence. I choose as my starting point 5 years imprisonment. After taking all the aggravating and mitigating circumstances into account I arrive at a sentence of 4 years imprisonment.

Count 2

In State v. Seremaia Balelala Crim. Case No. HAM0047 of 2003, a man who wrongfully confined a woman overnight at the Colo-i-suva rock pools, using a cane knife to cow her into submission in order to rape her was sentenced to 12 months imprisonment. However he had been charged, not under section 251 of the Penal Code, but under section 256 of the Penal Code, which is a less serious offence. In this case you confined the victim for a total of 4 days. The circumstances of that confinement were brutal and traumatic. In the circumstances I take as my starting point, 5 years imprisonment. After adjustment for the aggravating and mitigating circumstances I arrive at a sentence of 4 years imprisonment.

Counts 3 – 7

I start at 7 years imprisonment. The use of gratuitous violence, the psychological trauma and damage to the victim, the physical injuries she sustained, lead me to increase your sentence to 11 years imprisonment. After adjusting your sentence to reflect the matters raised in mitigation, I arrive at a sentence of 10 years imprisonment. This is at the higher end of the tariff for rape offences but I consider that it is a sentence which reflects the seriousness of your conduct, and of the consequences of your conduct.

Although in principle each offence is separate and should lead to consecutive sentences, this will lead to an excessively lengthy total term. As such I order that the sentences on each count must be served concurrently.

The sentences are:

Count 1 - 4 years imprisonment

Count 2 - 4 years imprisonment

Count 3 - 10 years imprisonment

Count 4 - 10 years imprisonment

Count 5 - 10 years imprisonment

Count 6 - 10 years imprisonment

Count 7 - 10 years imprisonment

All sentences are to be served concurrently.

Nazhat Shameem
JUDGE

At Suva
6th April 2004