State v Lotawa [2011] FJHC 389; HAC12.2011 (25 July 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO : HAC 12 of 2011

BETWEEN:

STATE
Prosecution

AND:

PENI LOTAWA
The Accused

Dates of Trial: 13-14 July 2011
Date of Summing-Up: 15 July 2011
Date of Conviction: 18 July 2011
Date of Submissions: 21 July 2011
Date of Sentence: 25 July 2011

Ms L Vaiteitei for the State
The Accused in person

• Name of the victim is suppressed on an application by the State and she will be referred to as EG as and when such reference is necessary.
  

SENTENCE

(i) The accused abovenamed was found guilty by majority opinions of assessors of the charge of rape punishable under Section 207 (1) (2) (a) of the Crimes Decree No 44 of 2009. I, having considered the evidence and my directions to the assessors, agreed with the majority opinions and convicted the accused of the offence of rape as charged.

(ii) Evidence revealed that the victim, EG, was an Australian national. She was on a tour to Fiji with her parents and was staying at a well-known hotel in Denarau. She came for a walk in the morning on 30 December 2010 on the same beach that she used to walk on with her parents previous day.

(iii) She was met by a group of young people who had greeted her 'Bula' to which she greeted them back. They had talked to the victim and had offered her drinks, which she initially refused but later accepted as the group kept on offering. Thereafter, she had gone for a swim with another girl in the group in the sea; and, the accused had followed them.

(iv) The girl had later got out of water but the accused continued to be with victim-EG. According to the evidence, the accused, whilst in the sea, tried to insert his fingers into her vagina, which was objected to by EG.

(v) Thereafter, the victim went up in the beach to a lake and the accused too followed her. Later, the accused, having pulled her into the mangroves pushed her down. Her struggles to escape were in vain and the accused, after taking her swim-suit off tried to put his penis into her vagina. The accused eventually succeeded in his act of inserting the penis into the vagina of the victim.

(vi) It is in light of this evidence that the accused stands convicted of the offence of rape. The offence, in terms of Section 207 of the Crimes Decree, attracts a maximum punishment of imprisonment for life. In imposing the appropriate sentence, this court should essentially be aided by sentencing guidelines as set-down before.

(vii) In Kasim vs State [1994] FJCA 25, the Court of Appeal of Fiji laid down the principle that the sentence for the offence of rape on an adult should have the starting point of seven years of imprisonment.

(viii) The victim in this case admittedly was over and above 13 years of age having the necessary mental capacity to consent. However, her exact age was not established by the prosecution even though the learned state counsel advanced the proposition in her sentencing submissions that the victim was still a child below 18 years alluding to an enhanced punishment on an applicable range of sentence.

(ix) This court, in the absence of any cogent evidence as to the exact age of the victim, is not inclined to accept the state proposition. This conclusion is justified as the learned state counsel herself in assisting court as to the proper sentence in this case, was reliant on Kasim vs State (supra) and other authorities, which dealt with the range of sentences for rape of an adult,. I will, accordingly, pick-up a term of seven year imprisonment as the starting point.

(x) The above starting point was applied in State v Balemaira [2010] FJHC 539 and State v Dakanivavalagi [2011] FJHC 383 and final sentences were imposed having regard to aggravating and mitigating circumstances.

(xi) The victim was a tourist and she was enjoying her leisure at a beach, which was meant to be so, when she was enticed by the traditional Fijian Greeting 'Bula' by a group of youth including the accused. Though her friendly gesture albeit at a short encounter paved the way to have joined the youth at drinks and to enjoy, it appears that the accused misused the occasion to satisfy his sexual desire. This operates as an aggravating factor although there exists no evidence of violence apart from the physical force that is embedded in the offence itself.

(xii) The accused was 33 years of age and therefore was in an age of maturity so as to make rational judgments. The fact that he was perhaps in a state of drunkenness will not serve as a factor to mitigate the sentence.

(xiii) The accused does not have a record of being involved in this kind of offences or instances of grave violence before. There is, however, a previous conviction against him for 'Assault Occasioning Actual Bodily Harm' for which a suspended term was imposed by a Magistrate's Court, which elapsed in June 2008. This blemish alone, in my view, should not preclude court from giving him some leniency for the past record, which is otherwise free from criminal behaviour though not exemplary.

(xiv) For the factor above I have summarized as aggravating, I increase the sentence by one year and arrive at a term of eight years. I reduce the sentence by 1 1/2 years having regard to his past record devoid of prison experience. I further reduce six months for the four-month period of remand. I, accordingly, arrive at a term of six years. The accused will be entitled to parole after serving a period of four years.

Priyantha Nawana
Judge
High Court,

Lautoka
25 July 2011