State v Masi [2011] FJHC 234; HAC233.2010 (27 April 2011)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL JURISDICTION
HIGH COURT CRIMINAL NO:

HAC 233 OF 2010

BETWEEN:

STATE
Prosecution

AND:

ROMULUSE MASI
Accused

Counsel: For State - Ms. Tabua, K
For Accused - Ms. Savou
Date of Sentence: 27th April, 2011.

SENTENCE

Romuluse Masi you were convicted for the offence of Rape on your own plea of guilty.

The summary of facts, which were admitted by you in this case were that on 30/10/2010, the victim complainant took a short cut at Tovata settlement to visit her brother. She heard someone calling her to see it was the accused, who was living in the area. You asked her where she was going and all of a sudden you grabbed her waist and pulled her into the house. She could smell alcohol in your breath. Some boys were drinking alcohol in the sitting room and you pulled her into the bathroom, pulled her panty down and inserted your finger inside her vagina. Then you pushed your penis into her mouth. The victim was disgusted and asked you to stop, but you pushed her onto the floor and inserted your penis into her vagina. The victim struggled and tried to push you away. While you were doing that one Melaia came to the room and confronted you. Then you stopped your act, got dressed and walked away. Then Melaia took the victim to her home and told the father and complaint to Police was lodged.

You are related to the victim by marriage and you had the knowledge of the fact that the victim is a patient of St. Giles hospital as she suffers from a mental disorder namely Bipolar Affective Disorder.

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

The gravity of rape cases will differ widely depending on circumstances of each case.

In the case of Kasim v State [1994] FJCA 25; AAU 0021J.93S (27 May 1994) sentencing guidelines in cases of Rape was discussed. It was decided in that case 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.

In Kasim's case the 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".

While endorsing the trend in Mohammed Kasim's case, in the case of Drotini v The State [2006] FJCA 26; AAU 0001.2005s (24 March 2006) the court said:

"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".

In case of Poese v The State [2005] FJHC 9; HAA 0091J.2004S (12 January 2005) the court said:

"the tariff for rape in Fiji on one count is 5 to 10 years imprisonment where the victim is an adult".

In this case the aggravating factors are that the victim was vulnerable as she was suffering from a mental disorder and on medication, which the accused had the knowledge of. Accused took the advantage of it and as a known person breached the trust. Court considers this as a serious aggravating factor.

In mitigation accused submitted that he is 33 years of age, he is married with 4 children between ages of 11 and 5 years. The wife is working and earning an income of $121 a week while the accused does the domestic duties while looking after the 4 children. He is remorseful and takes the full responsibility for his actions. He states that he will never re-offend and that he co-operated with the Police.

Considering the circumstances of the case and the legal principles stated above I take 7 years imprisonment as the starting point. For the aggravating factors mentioned above I add 5 years imprisonment making a total of 12 years imprisonment.

For the mitigating factors I deduct 2 years imprisonment. I further consider your early plea of guilty so that the victim did not have to go through the trauma of giving evidence and being cross examined by the defence. It is well known that victims of rape than any other offences can find it an extremely distressing experience to give the evidence in open court about what has happened to them, even where their identity is protected. Therefore especially in cases of rape courts are prepared to and should give a substantial reduction in cases where the accused pleads guilty. Hence I deduct 3 years for his early guilty plea.

You are not entitle to a discount for your previous good character as you have one previous conviction although it was not on a similar offence.

Therefore your final sentence is 7 years imprisonment.

Considering the circumstances of the case and acting in terms of Section 18 of the Sentencing and Penalties Decree 2009, I make order that the accused should serve a minimum period of 5 years imprisonment during which period you are not eligible to be released on parole.

You have 30 days to appeal.

Priyantha Fernando
JUDGE

At Suva
27th April, 2011.