State v Laqekoro [2011] FJHC 502; HAC037.2011S (6 September 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 037 OF 2011S

STATE

vs

SAVENACA LAQEKORO

Counsels: Mr. Y. Prasad for the State
Mr. S. Waqanabete for Accused
Hearing: 28th July, 4th and 16th August, 2011
Sentence: 6th September, 2011

SENTENCE

1. On 28th July, 2011, in the presence of your counsel, you pleaded guilty to the following offence:

Statement of Offence

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

Particulars of Offence

SAVENACA LAQEKORO on the 26th day of December, 2010 at Naqara Village, Naitasiri, in the Central Division, penetrated the mouth of M.V with his penis without the consent of the said M.V.

2. On 4th August, 2011, the court checked with your counsel to see that you have admitted all the elements of the offence. On your behalf, your counsel admitted that, on 26th December 2010, you unlawfully inserted your penis into the 15 year old victim's mouth, without his consent. On the basis of your above admission, you were found guilty as charged, and convicted accordingly.

3. The brief facts were as follows. You were 70 years old at the time of the offence. The victim was a 15 year old male student. You were residing in the same village. On 26th December, 2010, you somehow took the victim to your house. You told him to lie in your bed. You later undressed. You then forced him to suck your penis. At your command, he complied. You inserted your penis into his mouth, without his consent. What you did was later discovered and reported to police. As a result, you are presently been charged for the offence of rape.

4. Previously, what you did was often termed as "indecent assault". However, by virtue of sections 207(1) and 2(c) of the Crimes Decree 2009, which had effect from 1st February 2010, your actions are now classified as "rape". In other words, by unlawfully penetrating the complainant's mouth with your penis, without his consent, you are committing the offence of rape.

5. Rape is a very serious offence, and as such, carries a maximum sentence of life imprisonment. Previous case laws establish the tariff between 7 to 15 years imprisonment: see Mohammed Kasim v The State, Fiji Court of Appeal, Criminal appeal No. 21 of 1993: Bera Yalimaiwai v The State, Fiji Court of Appeal, Criminal Appeal No. AAU 0033 of 2003 and Viliame Tamani v The State, Fiji Court of Appeal, Criminal Appeal No. AAU 0025 of 2003. The actual sentence will depend on the mitigating and aggravating factors.

6. The mitigating factors in your case were as follows:

(i) Although you pleaded guilty 5 months 24 days after the first call in the High Court, you nevertheless saved the court's time, and saved the victim from having to relieve his ordeal in the courtroom by giving evidence.

(ii) The reports submitted by the prosecution on your previous convictions were not clear, therefore I will treat you as a first offender, at the age of 70 years.

(iii) The complainant was not seriously injured during the offending.

(iv) Your counsel submitted you co-operated with police during their investigation, you live alone in your house in the village, you are getting old, deaf and weak, but somehow you libido seemed to have the better of you, on the day in question.

(v) you have been remanded in custody since 29th January 2011, you first call in the Nausori Magistrate Court – a period of 7 months.

(vi) I'm told by your counsel that you are remorseful, and regret what you've done.

7. The aggravating factors were as follows:

(i) As a 70 year old man, you were considered an elder in your village. The 15 year old complainant was a juvenile in your village. As an elder in the village, you were in a position of trust to look after and guide the young in your village. Yet, you did exactly the opposite. You abused the trust placed on you, by raping this juvenile.

(ii) Sexual attacks on juveniles was always a serious matter for the courts, and we must respond accordingly when their safety and interests, were jeopardized.

(iii) When you committed this offence, you showed utter disregard to the juvenile's rights to be treated as a human being.

8. I start with a sentence of 8 years imprisonment. For the aggravating factors, I add 5 years imprisonment, making a total of 13 years imprisonment. For the mitigation factors, I make a deduction of 6 years, leaving a balance of 7 years imprisonment.

9. Savenaca Laqekoro, I sentence you to 7 years imprisonment. Pursuant to section 18(1) of the Sentencing and Penalties Decree 2009, you are to serve a non-parole period of 5 years.
10. To protect the privacy of the complainant juvenile, his name is permanently suppressed, until further orders from the court.

Salesi Temo
JUDGE

Solicitors for the State : Office of Director of Public Prosecution, Suva. Solicitors for Accused : Office of the Legal Aid Commission, Suva.