State v Naigani - Sentence [2010] FJHC 580; HAC121.2010 (3 November 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 121 OF 2010

STATE

vs

LAISIASA NAIGANI

Mr. J. Singh for the State
Accused in Person

Date of Hearing: 02 and 03 November 2010
Date of Sentence: 03 November 2010

SENTENCE

1. You are charged with the following offences:

FIRST COUNT

Statement of Offence

WEARING OF UNIFORM WITHOUT AUTHORITY: Contrary to section 382(1)(b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

LAISIASA NAIGANI on the 21st day of August 2010, Ba in the Western Division, whilst not being a member of the Fiji Navy, wore an overall with a Navy badge which is a distinctive mark of the Fiji Navy.

SECOND COUNT

Statement of Offence

RAPE: Contrary to section 207(1) and (2) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

LAISIASA NAIGANI on the 21st day of August 2010, at Ba in the Western Division, penetrated the vagina of AVELINA MEREULA with his penis, without the consent of the said AVELINA MEREULA.

2. To the first count you entered a plea of guilty and you were convicted after admitting the facts relating to that count. On the second count you have been found guilty and convicted by this Court after trial.

3. The facts of the case are that on the 21st August 2010 in Ba town, you approached a girl of 16 when you were dressed in a Navy jumpsuit. You told the girl that you were with the Navy in Suva and that you were looking for a missing girl and wanted her to go with you to help with your enquiries. The girl was reluctant but you told her she would be imprisoned if she didn't assist. You led her to a dark passage and stairway near a jewellery shop telling her your "office" was upstairs.

While climbing the steps you punched the girl on her neck causing her to fall. She says she lost consciousness and can remember nothing thereafter. You later told the Police that you took her to a cane farm near town where you punched her some more and removed her clothes as well as your own. You then forcefully had sex with her. A medical examination the next day revealed evidence of the punches and of the sexual intercourse.

4. Offences of rape are very serious and are far too prevalent in Fiji. The Court of Appeal has said in Mohammed Kasim v State – Cr. App. 21 of 1993 that the starting point of sentence must be seven years. (This was later approved in Beramaiwai v State – AAU0032 of 2003S).

5. This offence was charged under the new Crimes Decree where the maximum penalty is still life imprisonment and the previous authorities for sentence are still apposite. In following Kasim I take a starting point of seven years in your case. There are several aggravating features such as luring the girl away with you by the deceit of being a Naval person and the use of violence to subdue her. For those aggravating features I add to your sentence a further four years imprisonment making an interim total of eleven years.

5. You are 29 years old, a cane farmer and you care for your very elderly step mother. You ask for forgiveness and you tell me that it was a spontaneous lustful wish to have the girl, and there was nothing preplanned. For your mitigation I deduct three years meaning that you will serve a term of 8 years for the rape.

6. You will serve a minimum term of 6 years.

7. For the offence of wearing a uniform without authority, the maximum penalty is one month's imprisonment. You told me that you bought the uniform that day in town and you planned to wear it while cutting cane. I have regarded the wearing of the uniform as an aggravating feature of the rape and I do not propose to add any additional penalty for this summary offence. Pursuant to section 15(1)(j) of the Sentencing and Penalties Decree 2009, I record a conviction against you and order a dismissal of the charge.

Paul K. Madigan
JUDGE

At Lautoka
03 November 2010