State v Balemaira - Sentence [2010] FJHC 539; HAC116.2010 (26 November 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINALCASE NO: HAC 116 OF 2008

BETWEEN:

STATE
PROSECUTION

AND:

KALIOVA VUKI BALEMAIRA
ACCUSED PERSON

Counsel: For State - Ms. S. Puamau
For Accused Person - Ms. B. Malimali

Date of Hearing: 5th October, 2010 – 28th October, 2010.

Date of Sentence: 26th November, 2010.

SENTENCE

[1] The accused Kaliova Vuki Balemaira was charged with 2 counts of Rape and with one count of Larceny.

At the end of the prosecution case, court found that there was no case to answer in respect of Count No.3, Larceny.

After full trial the accused was acquitted of the 1st Count of Rape and was convicted of the 2nd Count of Rape.

[2] The brief facts of the case were, after arrival from World Netball Championship Tournament, the victim Marjorie Parr and her friends had a party at a villa at Pacific Harbour, which was owned by one of her friends' father. The accused too joined the party with his friends. At the party, all had drinks and enjoyed. After the victim went to sleep, the accused went inside the room where the victim was sleeping and raped her. At the trial the accused admitted sexual intercourse with the victim, but with consent.

[3] Rape is considered a very serious crime. The maximum punishment prescribed in Law for Rape is life imprisonment.

[4] In the case of Kasim v State [1994] FJCA25; AAU 0021j.93S (27 May 1994) it was decided that the starting point for sentencing an adult in any rape case without aggravating or mitigating features, should be a term of imprisonment of seven years.

[5] In Kasim's case court said:

"While it is undoubted that the gravity of rape cases will differ widely depending on all the circumstances, we think the time has come for this Court to give a clear guidance to the Courts in Fiji generally on this matter. We consider that in any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment of seven years. It must be recognized by the Courts that the crime of rape has become altogether too frequent and that the sentences imposed by the Courts for that crime must more nearly reflect the understandable public outrage. We must stress, however, that the particular circumstances of a case will mean that there are cases where the proper sentence may be substantially higher or substantially lower than that starting point".

[6] While endorsing the trend in Mohammed Kasim's case, court said in case of Drotini v The State [2006] FJCA 26; AAU0001.2005S (24 March 2006);

"The continuing frequency of such cases has resulted in a general increase in the levels of sentences ordered in rape cases by the courts of Fiji. We endorse that trend. We do not suggest that the starting point described in Mohammed Kasim's case should be altered in rape cases in general but the sentencing court should not hesitate to increase the sentence substantially where there are further aggravating factors"

[7] In mitigation defence called 3 witnesses including the accused, to give evidence.

[8] Accused giving evidence said as to how this case affected him for last 3 years. Further he said how it adversely affected his career as a Swimming coach and as a triathlete. He testified about his previous good character and also his good behavior during the period after the alleged date of offence. He further testified about his difficulties in prison. Denying the charge he said that the Prison is not the place for him.

[9] Youth co-ordinator Eremasi Lovodua giving evidence in mitigation said that he is prepared to accept the accused into a supervised community service program and requested for a non custodial sentence. Further he said that the accused was really depressed in prison.

[10] The girlfriend of the accused Jannette Kaipio giving evidence spoke about the good character of the accused. She said that the accused had never assaulted her or exhibited violent behavior. The sporting community in Fiji has a high regard on accused, she said. She testified about her future plans with the accused.

[11] Apart from the witnesses who testified, letters by Colin Philip dated 18/11/2010, by Paul McCoy dated 17/11/2010, by Dom Samson dated 16/11/2010, by Joji Domonatari dated 15/11/2010, by Leena Pratt dated 15/11/2010, by Suka Taufa dated 17/11/2010, by Haidi Williams Houng-Lee dated 16/11/2010 and an undated letter by Jennifer Liew were submitted by defence. All those letters spoke about the good character, and achievements of the accused, and requested for a lenient sentence.

[12] The court would consider the mitigating factors submitted by the Counsel for defence, that no serious violence was used on the victim when committing the offence, and how the case affected the accused.

[13] It was submitted on behalf of the accused that this case was hanging over his head for last 3 years and it affected his career as a Swimming coach.

[14] The victim impact statement was filed by the prosecution, which was not accepted by the defence. The defence Counsel informed court, that defence refuses to accept the victim impact statement, but didn't specify as to what parts of the statement they do not accept. Therefore court will consider the impact on victim, what was substantiated by the victim in her evidence at the trial.

[15] No further evidence was given by the victim or affidavit filed, to substantiate what has been said in the victim impact statement.

[16] Section 4(2)(e) of the Sentencing and Penalties decree provides provision for taking of victim impact statement into consideration.
Section 4(2) (e);

4(2) In sentencing offenders a court must have regard to:

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence.

[17] In her evidence at the trial victim said, that she walked away from sports. She never let her son live by her side. Her relationship with her husband was disturbed, she didn't want to be in company with any Fijian man, she had to undergo counseling and that, she couldn't stay alone at home when husband was away.

[18] Court would take into account the impact on the victim by this offence, which was substantiated by her evidence in court. However, the court will also bear in mind that it was not substantiated by any medical evidence, that the mental trauma the victim underwent, was of permanent in nature or that it still remains.

[19] In this case it is evident, that the accused requested to join the party and later the victim and the other ladies agreed to let the accused and his friends to join them. The trust reposed on accused by allowing him to be present at the party was misused or abused by him, which I consider as an aggravating factor. I see no other aggravating factors than the above to have aggravated the offence.

[20] The accused in this case is of 27 years old (at the time of offence 24 years), and the victim is of 31 years old at the time of offence. As mentioned above rape is a serious criminal offence. The sentence will vary depending on the circumstances of the case including the aggravating and mitigating factors.

[21] I am of the view that the circumstances do not warrant a non custodial sentence in this case of Rape as urged by the defence.

[22] I take as starting point a term of 7 years imprisonment.

For aggravating factor mentioned above, I add 1 year imprisonment.
For the mitigating factors mentioned above, including all what was said about accused, his previous good behavior, his conduct and his period in remand, I reduce 2 years making a total of 6 years imprisonment.

Considering the circumstances of the case I make order that the accused to serve a minimum term of four years imprisonment.

Your final sentence is 6 years imprisonment.

You have 30 days to appeal.

Priyantha Fernando
Puisne Judge

At Suva
26th November, 2010.