State v Vunivesi [2005] FJHC 521; HAA0108.2005L (9 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0108 OF 2005L

THE STATE

v.

RUSIATE VUNIVESI

Mr. M. Korovou for the State
Appellant in Person

Date of Hearing: 9 September 2005
Date of Judgment: 9 September 2005

EXTEMPORE JUDGMENT ON APPEAL

The appellant was convicted by the Learned Magistrate at Nadi on the 22^nd May 2005 and was sentenced to a total of 20 years imprisonment.

FIRST COUNT

Statement of Offence

WRONGFUL CONFINEMENT: Contrary to section 256 of the Penal Code, Cap. 17.

Particulars of Offence

RUSIATE VUNIVESI with one another on the 18^th day of May 2005, at Nadi in the Western Division, wrongfully confined NADINE SAILE and MICHAEL THOMAS DIEZEL against their will.

SECOND COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1) (b) of the Penal Code, Cap. 17.

Particulars of Offence

RUSIATE VUNIVESI with one another on the 18^th day of May 2005, at Nadi in the Western Division, robbed one MICHAEL THOMAS DIEZEL of $20.00 (AUD) and immediately before the time of such robbery did use personal violence to the said MICHAEL THOMAS DIEZEL.

THIRD COUNT

Statement of Offence

ABDUCTION: Contrary to section 152 of the Penal Code, Cap. 17.

Particulars of Offence

RUSIATE VUNIVESI with one another on the 18^th day of May 2004, at Nadi in the Western Division, with intent, carnally know a woman namely NADINE SAILE, detained the said NADINE SAILE against her will.

FOURTH COUNT

Statement of Offence

RAPE: Contrary to section 149 and 150 of the Penal Code, Cap. 17.

Particulars of Offence

RUSIATE VUNIVESI on the 18^th day of May 2005, at Nadi in the Western Division, had unlawful carnal knowledge of NADINE SAILE without her consent.

FIFTH COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293 (1) (b) of the Penal Code, Cap. 17.

Particulars of Offence

RUSIATE VUNIVESI with one another on 18^th day of May 2005 at Nadi in the Western Division, robbed one NADINE SAILE of one gold necklace valued AUS $120.00, one ladies wristwatch valued at AUS $100.00, one pair pearl earring valued AUS $100.00 and one imitation right valued AUS $10.00 to the total value of AUS $330.00 and at the time of such robbery did use personal violence to the said NADINE SAILE.

The appellant pleaded guilty before the Learned Magistrate. The facts as recorded in the record are that on the 18^th May 2005 at 9.00pm, Nadine Saile, 22 year old student of Germany and her partner, Michael Thomas Diezel, 23 year old student also of Germany who were tourists were standing near the Skylodge Hotel in Namaka. They stopped the van driven by the accused and asked to be taken to Nadi Town. The accused agreed. But instead of taking them to town, he drove the van to Nasau which is a settlement near Nadi Back Road. The accused at the time was with another Fijian man in the van.

In Nasau in a secluded area, the accused with the help of his accomplice assaulted the male victim Michael Thomas Diezel and threw him out of the road. He was left on the road in total darkness.

Then the accused and his accomplice drove the van from Nasau on the Nadi Back Road to Votualevu Cemetery Road where he raped the victim Nadine Saile.

The distance between Nasau where the accused and his accomplice assaulted the male victim to the Cemetery Road is approximately 15 kilometers.

After having unlawful sexual intercourse with her, he robbed her of her wristwatch, a pair of earrings, and one imitation ring all valued at about $340.00.

The accused and his accomplice left the victim, Nadine, near the cemetery or Cemetery Road at about 11.00pm and went away after raping her.

Motor vehicles passing by helped both the victims by taking them to police station.

An extensive police investigation was mounted and as a result, the accused was arrested.

The accused appeals against the sentence imposed by the Learned Magistrate.

The Learned Magistrate imposed a period of imprisonment of 12 months imprisonment on the first count, a period of imprisonment of 6 years with respect to the second count, a period of 4 years imprisonment with respect to the third count and a period of 8 years imprisonment with respect to the fourth count and a further term of 6 years imprisonment with respect to the fifth count.

The Magistrate then ordered whilst saying that he was mindful of the totality principle that counts 2, 4 and 5 be served consecutively making a total sentence of 20 years imprisonment and that counts 1 and 3 be served concurrently to the other terms. The Learned Magistrate also ordered five strokes of corporal punishment however that matter has previously been dealt with by this court.

It is a fundamental principle of sentencing that where offences are committed as part of the one act that the sentences should be concurrent and not consecutive however, one should take account of the totality principle and look at an appropriate total sentence for the various offences. The term of imprisonment of 20 years is quite inappropriate.

The Fiji Court of Appeal in Mohammed Kasim v The State – Criminal Appeal No. 21 of 1993 set forth that the starting point for sentencing an adult for rape should be a term of imprisonment of 7 years to the starting point is added a further period for aggravating factors and then a reduction for mitigating factors is made. The mitigating factors in this instance would have been the early plea of guilty and the fact that the appellant had no prior convictions. Against this, there are the aggravating factors of the significant injuries sustained for the victim as are detailed in the court record.

There is also, as has been held by this court in the past, the aggravation of the victim being a tourist. In considering those aggravating factors and offsetting the mitigation, I am of the opinion that a term of imprisonment of 8 years is certainly not manifestly excessive or wrong in principle.

There is no need to deal with the sentences for Count 4.

The Orders of the Court will be:

1. The appeal on conviction is dismissed.

2. The appeal on sentences is allowed.

3. The sentences imposed by the Learned Magistrate with respect to each of the five counts are confirmed, however all sentences are to be served concurrently which will result in a total term of 8 years.
   

JOHN CONNORS

JUDGE

At Lautoka

9 September 2005