State v Tikoikirisimasi [2011] FJHC 4; HAC040.2010 (19 January 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 040 OF 2010S

THE STATE

V

SAMISONI TIKOIKIRISIMASI

Counsels: Ms. P. Low for the State
Accused in Person
Hearing: 17th January 2011
Sentencing: 19th January 2011

SENTENCE

1. On 9th March 2010, you were charged with the following offences:

FIRST COUNT
Statement of Offence

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

Particulars of Offence

SAMISONI TIKOIKIRISIMASI, on the 5th day of February 2010 at Qoma Island, Tailevu in the Central Division, had unlawful carnal knowledge with MARAIA DITAGI without her consent.

SECOND COUNT

Statement of Offence

ESCAPE FROM LAWFUL CUSTODY: contrary to Section 196 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

SAMISONI TIKOIKIRISIMASI on the 9th day of February 2010 at Korovou Police Station, Tailevu in the Central Division, being in lawful custody escaped from the said lawful custody.

2. On 17th January 2011, the first day of trial, you pleaded guilty to the charges. Previously, your application for legal aid was rejected, and you said you would represent yourself. The prosecution presented her summary of facts immediately thereafter.

3. Briefly, the facts were as follows. On 5th February 2010, at about 5pm, the complainant and some youths from Qoma Village, Tailevu, were going to a pond half a kilometer away from the village. They were going to fetch some water and have a bath. On the way, the complainant met you and you asked her for sex. She refused, wherein you forcefully dragged her 30 meters away to a "voivoi" plantation. You then forced her to the ground, forcefully took off her clothes, and inserted your erect penis into her vagina. The complainant did not consent at the time, and you well knew about that. You had sex with the complainant for about 5 minutes. At the time, the complainant was crying.

4. The matter was reported to the police, and an investigation was carried out. You were caution interviewed by police on 10th February 2010, and you admitted the offence of rape. On 9th February 2010, however, you escaped from Korovou Police Station, while being investigated. You were later charged with "rape", and "escaping from lawful custody".

5. After the prosecution presented her summary of facts, the court checked with you to see that all the ingredients of the offences were admitted by you. You admitted that you had sexual intercourse with the complainant, without her consent, at the material time. You also admitted that you knew that the complainant was not consenting to sex, at the time. On the basis of your admission, the court found you guilty as charged, and convicted you accordingly.

6. I note that you are a first offender, at the age of 18 years. You are single and unemployed. You finished school at class 8, and reside at Rukuruku Village, Ovalau. I note that you and the complainant are related by marriage. I also note you have reconciled with the complainant and her family. You have being remanded in custody for 11 months since 10th February 2010.

7. "Rape" under section 207(1) of the Crimes Decree 2009 carries a maximum sentence of life imprisonment. It is similar to the repealed section 150 of the Penal Code, chapter 17. As a result, previous case authorities on sentencing for "rape" under the Penal Code are also applicable under the Crimes Decree 2009, because the law makers have not intended any change. The present tariff for rape is a sentence between 7 to 15 years imprisonment: Mohammed Kasim v The State, Criminal Appeal No. 21 of 1993, Fiji Court of Appeal; State v Nacanieli Marawa, Criminal Case No. HAC 0016 of 2003, High Court, Suva; The State v Navuniani Koroi, Criminal Appeal Case No. HAA 0050 of 2002, High Court, Suva; The State v Viliame Tamani, Criminal Case No. HAC 0007 of 2003, High Court, Suva and State v V. V., Criminal Case No. HAC 084 of 2009, High Court, Suva. The actual sentence will depend on the mitigating and aggravating factors.

8. "Escaping from lawful custody" carries a maximum sentence of 2 years imprisonment, under section 196 of the Crimes Decree 2009.

9. In your case, the mitigating factors were as follows:

(i) you're a first offender at the young age of 18 years;

(ii) you pleaded guilty to the offences on the first day of trial, and as a result, saved the court's time;

(iii) the complainant was not seriously injured during the offending;

(iv) you have reconciled with the complainant and her family;

(v) you have effectively served 16 months imprisonment, while being remanded in custody for 11 months since 10th February 2010.

10. The aggravating factors in your case were as follows:

(i) By forcing yourself on the complainant sexually, you showed her total disrespect and total disregard for her personal dignity;

(ii) By committing the offence, you showed a total disregard for the complainant's safety and general welfare, and ruined her reputation.

11. For the rape offence, I start with 7 years imprisonment. I add 2 years imprisonment, for the aggravating factors, making a total of 9 years imprisonment. For the first four mitigating factors, I deduct 2 years 8 months, leaving a balance of 6 years 4 months.

12. For the rape offence, your effective prison sentence is 6 years 4 months, but since you have being remanded in custody for the previous 11 months since 10th February 2010, you have already served an equivalent of 1 year 4 months imprisonment, which I deduct from the 6 years 4 months, leaving a balance of 5 years imprisonment. For the escaping from lawful custody, I sentence you to 6 months imprisonment, concurrent to the balance of 5 years imprisonment.

13. In summary, on "the rape" offence, you are sentenced to 5 years imprisonment. On the "escaping from lawful custody" offence, you are sentenced to 6 months prison. Both sentences are concurrent to each other ie. a total sentence of 5 years imprisonment.

14. Before I conclude the sentencing process, let me say something about reconciliation on rape cases. Reconciliation cannot be used as a method to avoid a custodial sentence. It only goes to mitigating the custodial sentence. The law requires that all those found guilty of rape must be given custodial sentences to protect the vulnerable in our society, whether they be girls or boys, children, women or men. This is so because the Crimes Decree 2009 has extended the definition of rape to include both females and males.

Salesi Temo
ACTING JUDGE

Solicitors for the State : Office of Director of Public Prosecution, Suva
Solicitors for the Accused : In Person