State v Raovuna - Sentence [2011] FJHC 59; HAC 021.2010 (10 February 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 021 OF 2010

BETWEEN:

STATE

AND:

KINIVILIAME RAOVUNA

Counsel: Mr. M. Kaisamy for the State
Mr. T. Lee (L.A.C) for Accused

Date of Hearing: 7, 8, 9 and 10 February 2011
Date of Sentence: 10 February 2011

SENTENCE

[1] Kiniviliame Raovuna, you have been acquitted of one charge of rape but convicted on the lesser charge of defilement pursuant to the unanimous opinions of 3 assessors and the judgment of this Court.

[2] The facts at trial revealed that in the last week of May 2010, you had gone to stay with your uncle at Seaqaqa. While there you came into contact with the victim Katarina and you and she had several meetings over 3 days and you each considered the other to be a romantic friend. On the evening of the 30th May 2010, you and Katarina found yourselves at a house in the settlement where sexual intercourse took place between you. The assessors and the court were obviously of the view that it was consensual.

[3] The only defence to an offence of defilement is that the defiler was of the belief that the victim was over the age of 16. You have told the Court that she told you she was 17 and you believed her, but on seeing how small and young she looks, it is not surprising that the assessors didn't believe that you thought she was 17.

[4] You are 19 years old and single and currently unemployed. You have no previous convictions which is in your favour. You have expressed sincere remorse and your remorse has been quite apparent to me throughout your trial by your demanour.

[5] Goundar J said in Kabaura HAC 117/2010S that the tariff for this offence is from a suspended sentence to four years imprisonment, suspended sentence reserved for cases of "virtuous friendship" offending while the higher side is for older offenders who abuse trust.

[6] It is quite apparent that you considered the victim your girlfriend and there is evidence that she was encouraging you over the few days that you were together. I therefore, regard you in the "virtuous friendship" category and you therefore will have the benefit of this Court's leniency.

[7] You offered to plead guilty to this particular offence before trial, a plea which was not accepted by the State but you will have the benefit of that strong mitigating factor.

[8] I take as my starting point a term of 12 months imprisonment and I reduce that by 4 months to reflect your willingness to plead guilty. The resultant term of imprisonment of eight months will be suspended for a period of two years.

[9] I now explain to you the effect of a suspended sentence.

P.K. Madigan
Judge

At Labasa
10 February 2011