State v Dakanivavalagi [2011] FJHC 383; HAC011.2011 (14 July 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No: HAC011 of 2011

THE STATE

v.

1. RATU VERE DAKANIVAVALAGI
2. METUISELA MOTO
   

Counsel: Mr. T. Ravuniwa for State
Ms. M. Lemaki for both Accused

Date of Hearing: 6-7 July 2011
Date of Sentence: 14 July 2011

SENTENCE

[1] Following a trial, the first accused was convicted of aiding the rape of Noami Leba and the second accused was convicted of rape of Noami Leba. The incident occurred at Nasinu, Savusavu on 31 December 2010. Both accused were charged on 18 February 2011. They have been in custody on remand since that date.

[2] The victim is a married woman. She considered both accused as her cousins. She had an extra-marital affair with the first accused. She kept her affair discrete from her husband and children. On the night of 31 December 2010, she invited the first accused into her home when her husband was away and her children were asleep. They had consensual sex. After he had done with her, he pushed her back and pressed a pillow on her face. The second accused then had sexual intercourse with the victim without her consent while the first accused continued pressing the pillow on her face. There is some evidence that both accused were drunk at the time. They left after the incident. The victim came out of her bedroom and cried. She was afraid of what her husband and children would think of her if they came to know about the incident.

[3] The maximum penalty for rape is life imprisonment. The penalty is same for aiding a rape. In Kasim v State Criminal Appeal No. 21 of 1993, the Court of Appeal established the starting point of 7 years imprisonment for the rape of an adult.

[4] The first accused is 28 years old. He is single. He has attained up to class 7 education. He is unemployed. He helps his parents with farming. He has two previous convictions for larceny in 2009.

[5] The second accused is also 28 years old and single. He has attained up to form 4 education. He is unemployed. He has one previous conviction for assault in 2006. This is their first conviction for a sexual assault.

[6] I consider both accused to be equally culpable. They exploited the vulnerability of the victim. They knew she was having a secret extra-marital affair and therefore she would be less inclined to report rape for the fear of her affair being exposed to her husband and children. Although she did not sustain any physical injury, pressing a pillow on her face to smother her during a sexual act was dangerous. She trusted both accused. That trust was breached when the victim was raped. These factors aggravated the offence.

[7] The court has a duty to denounce any form of sexual attack on a woman. The character of the woman becomes irrelevant when it comes to rape. No woman wants to be raped because rape is not just an attack on her body but is an attack on her soul. The purpose of the sentence for rape is to deter men from committing this offence.

[8] I pick 7 years as my starting point. I increase the sentence to 9 years to reflect the aggravating factors and reduce the sentence to 8 years to reflect the mitigating factors albeit they are no compelling and the remand period.

[9] Both accused are sentenced to a term of 8 years imprisonment with a non-parole period of 6 years.

Daniel Goundar
JUDGE

At Labasa
14 July, 2011

Solicitors:
Office of the Director of Public Prosecutions, Labasa for the State
Office of the Legal Aid Commission, Labasa for the Accused