State v Loco [2010] FJHC 465; HAC047.2008L (22 October 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 47 OF 2008L

STATE

V

SAMUELA LOCO

Miss I. Whippy for the State
Accused in Person

Date of Hearing: 19 and 20 October 2010
Date of Sentence: 22 October 2010

SENTENCE

[1] The accused appears in this Court charged with rape. The offence reads as follows:

Statement of Offence

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

Particulars of Offence

SAMUELA LOCO on the 7th day of June 2008 at Nadi in the Western Division had unlawful carnal knowledge of a woman namely, ADI AKANISI NALUKUYA without her consent.

[2] To this charge he pleaded not guilty and he proceeded to trial. The trial commenced on the 19th October 2010 with a voir dire on the admissibility of an interview he conducted under caution together with an answer to the charge. The interview contained detailed admissions and was found after hearing to be totally voluntary and to be admissible in evidence. The following morning the accused changed his plea to that of guilty which on enquiry, was found to be unequivocal and considered.

[3] Nothing is served by rehearsing here the odious and sordid facts of this case, which would only cater to the tastes of the prurient reader of the judgment. Sadly they read like the script of a pornographic horror movie. The Court is satisfied that all of the elements of the offence have been admitted by the accused, including penetration and lack of consent. Added to that however are elements of force fellatio, sexual abuse within fingers and tongue, threats of stabbing and death not only to the victim, but to her 11 month old son who was crying in the same room. A knife was used to inflict injuries to the victim's neck and to her genitalia. The victim was a married neighbour of the accused and the rape took place in her home at 10.30pm in the presence of her children. The accused was under the influence of alcohol and when later apprehended was found to be dead drunk.

[4] The victim stated that the accused smelt of liquor and on arrest later that night he was found to be dead drunk. He made full confessions to the crime at the Police Station.

[5] A medical examination of the victim showed lacerations to her neck and ear as well as knife injuries to the lower parts of her vagina.

[6] Rape being an offence of great severity, it must of course attract a long term of imprisonment. In this case the married lady with children was not only raped but subjected to gross indignities of forced fellatio, of digital and lingual assault all at knife point.

[7] The accused is 26 years old and single. At the time of the offence he was unemployed. He lives with his parents whom he supports. He shows little or no remorse for the offence.

[8] Kasim v State [1994] FJCA 25 set a starting point of rape of an adult at 7 years and Madam Justice Shameem said in Poese v State [2005] FJHC 9 that the tariff on one count is from 5 to 10 years; however Shameem J. further said in Bulimaiwai v State [2005] FJHC 261 "sentences at the upper end of the tariff should be imposed where gratuitous violence is inflicted, where a weapon is used".

[9] I take as a starting point a term of ten years imprisonment. The aggravating features are not only numerous. They are horrific –

• Invasion of family home,
• Injury to the victim's neck, ear and vagina,
• Rape in front of her children,
• Use of a weapon at all times throughout the assault,
• Forced sexual indignities apart from the rape.
• Threats to her baby.
  

[10] For these aggravating features I add a further five years making an interim total of 15 years. For the mitigation available, the main ground being his very late plea of guilty saving the victim the horror of reliving the ordeal I deduct three years meaning that the accused will be imprisoned for a term of 12 years. He will serve a period of ten years before being eligible for parole.

[11] An appeal against sentence can be filed in the Fiji Court of Appeal within 30 days.

Paul K. Madigan
Judge

At Lautoka
22 October 2010