State v Naidu - sentence [2005] FJHC 556; HAC0024.2005L (4 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0024 OF 2005L

STATE

v

BIMLESH NAIDU
s/o Kaliappa Naidu

Mr. K. Tunidau: Counsel for the State
Accused in Person

Date of Hearing: 3 and 4 August 2005
Date of Sentence: 4 August 2005

SENTENCE

Vimlesh Naidu, the assessors have expressed the opinions of your guilt for the offences of rape and wrongful confinement and you have been convicted of those offences and this is your sentence.

Particulars of the offence of rape are that on the 28^th July 2005, you met Barbara Pellizzari in Lautoka. That as a result of conversations that day in the street and a restaurant you arranged to meet her that evening under the guise that it was intended that you and she would be going to a hotel, a place where there would be other people. You then took her in a van to Saweni Beach where some beer and food were consumed and despite her request to return to town, you then drove to an isolated paddock off the Saweni Road, turned off the light, locked the doors of the vehicle and made advances to her. This resulted in all altercation taking place outside the vehicle where you punched Ms. Pellizzari, bruising her, giving her a black eye, you threatened her saying you had a knife, you forced her to be scared, to be frightened, in her words to be terrified to the point where she realizing she was unable to escape, sought some protection by offering a condom for use. You then despite her resistance continued to force yourself upon her and ultimately committed rape.

You denied the commission of the offence when you were interviewed by the police and you gave to the police a version of events very different from those facts that have been found by the court.

You are a taxi driver. You were in Naviti Street, Lautoka, on the 28^th July 2005 as a taxi driver, as a public service vehicle operator, when you were approached in a friendly fashion by Ms. Pellizzari. Ms. Pellizzari was in Lautoka as a tourist, a tourist from Italy, she arrived in this country on the 21^st July 2005 from Australia and she had been to various resorts prior to coming to Lautoka on that day. You took advantage of her. She sought from you guidance and assistance to find a restaurant and social contact in going to a hotel in the company of others. You abused your position in the extreme. This country is very dependent upon the tourist industry and conduct such as yours does little to encourage young people to visit this country. It discourages people from doing so. It detracts from the friendly nature that is portrayed overseas of the population of this country. You have betrayed not just yourself, not just your family but the population of your country by your conduct.

You have today after your conviction expressed your contrition and you have apologized to Ms. Pellizzari for what you have done. I take that into account. It is trite to say that is too little too late.

Ms. Pellizzari and other people like her, whether they be tourists or not, they are entitled to go about their business to be able to speak to males in public places without being exposed to conduct such as yours.

You come before the court as a 25 year old married man with a child, 1 year and 4 months old. You have been educated to Form 5. You left school in 1999 and it appears you have been continually in employment since leaving school and since 2002, you have been driving taxis.

You have a prior conviction that is in 2001 in Suva for indecent annoying a female. You received a fine of $100.00.

The Fiji Court of Appeal in Mohammed Kasim v The State – Cr. App. No. 21 of 1993 set forth that the starting point for sentencing an adult for rape without aggravation or mitigation should be a term of imprisonment of 7 years.

The Fiji Court of Appeal in Beramaiwai v The State – AAU0032 of 2003S in a judgment delivered on the 18^th March 2005 dismissed an appeal from Madam Justice Shameem, where a sentence of 7 years imprisonment for a public service vehicle driver for a charge of rape and in doing so, the court said:

“We agree with the judge that the breach of the appellant’s position of trust as the driver of the public service vehicle was a very serious aggravating factor. She was right to lay emphasis on that. The public is entitled to expect to be safe when using any public service vehicle.”

Taking account of the authorities to which I have referred, the circumstances surrounding the commission of the offences, your antecedents and the matters that you have placed before the court in mitigation, including the contrition that you have shown following your conviction, I am of the opinion that an appropriate sentence is a period of imprisonment of 9 years and accordingly with respect to the charge of rape, you are sentenced to imprisonment for a term of 9 years and with respect to the second count of wrongful confinement, you are sentenced to a term of imprisonment of 6 months and I order that both sentences be served concurrently.

JOHN CONNORS
JUDGE

At Lautoka
4 August 2005