State v Uili [2011] FJHC 62; HAC030.2010 (10 February 2011)

IN THE HIGH COURT OF FIJI
AT LABASA

CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 030 OF 2010

BETWEEN:

THE STATE

AND:

1. ELIFASA UILI
2. SAILA ASAELI
   

Counsel: Ms. S. Bull for State
Ms. M. Lemaki for both Accused

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

SENTENCE

[1] Following a trial, Elifasa Uili was convicted of indecent assault and Saila Asaeli was convicted of rape of the same victim.

[2] The victim was 19 years old and lived in Kioa Island. The offenders are also from Kioa Island. The victim and the offenders grew up together in the same village in Kioa Island. The victim treated the offenders as her brothers. They visited each others homes and the victim and her parents trusted the offenders.

[3] On 17 July 2010 the victim joined the company of the offenders and a girl for a drinking party after a wedding ceremony in the village. After consuming substantial amount of liquor the victim passed out. While she was unconscious, the offenders sexually assaulted her.

[4] The first sexual assault was committed by Elifasa Uili. He kissed and sucked the victim's neck while she lay unconscious. She sustained visible contusions (love bites) on her neck.

[5] The second sexual assault was more serious. Saila Asaeli undressed the victim and raped her while she lay unconscious.

[6] Both assaults were witnessed by the girl who was in their company. She was threatened by Saila Asaeli when she caught him having sexual intercourse with the victim.

[7] The maximum penalty for indecent assault is 5 years imprisonment. The case of Rokota v State Criminal Appeal HAA0068 of 2002 established the tariff for indecent assault to range from 12 months to 4 years imprisonment. Although Rokota's case was considered under the repealed Penal Code, the principles are applicable under the Crimes Decree, because the maximum penalty is the same.

In Rokota, Shameem J stated:

"The gravity of the offence will determine the starting point for the sentence. The indecent assault of small children reflects on the gravity of the offence. The nature of the assault, whether it was penetrative, whether gratuitous violence was used, whether weapons or other implements were used and the length of time over which the assaults were perpetrated, all reflect of the gravity of the offence. Mitigating factors might be the previous good character of the accused, honest attempts to effect apology and reparation to the victim, and a prompt plea of guilty which saves the victim the trauma of giving evidence".

[8] The maximum penalty for rape is life imprisonment. The maximum penalty for rape under the Crimes Decree is same as in the repealed Penal Code. 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.

[9] Elifasa Uili was 26 years old at the time of the offending. He joined the police force in 2005 as a constable. In 2009 he was suspended from the police force for a disciplinary offence. He was never recalled to the force and the chances of him now being recalled is slim due to this conviction. Now he is 27 years old. He is single and unemployed.

[10] Saila Asaeli was 20 years old at the time of the offending. Now he is 21 years old. He is single and works as a salesperson at his sister's clothes shop.

[11] The only mitigating factor for Elifasa Uili is his previous good character.

[12] For Saila Asaeli the mitigating factors are his previous good character and young age.

[13] I give considerable weight to these mitigating factors.

[14] I take into account that the offenders spent one month in custody on remand.

[15] The offending has aggravating features present. While no physical violence or weapon was used on the victim, the assaults took place while she was unconscious. The offenders took advantage of the victim's state of unconsciousness. She was not capable of resisting or defending herself. She was not aware of the assaults and would not have known about it, if not informed by the witness to the assaults.

[16] The victim trusted the offenders. The trust was build over years as they grew up together in the same village. The offenders breached that trust, having no regard whatsoever that the victim considered them as her brothers. In these circumstances, trust once breached cannot be re-gained. The offenders clearly exploited the victim as sex object when they found her unconscious. These are serious aggravating factors and the court must denounce any conduct that threat women as sex object. Any form of sexual assault on a woman is not only an attack on her body but is an attack on her soul. The perpetrators of sexual assaults on women must be deterred by punishment that reflects the gravity of the offence.

[17] For the offence of indecent assault, I pick 12 months as my starting point. I increase the sentence to 2 years to reflect the aggravating factors and reduce the sentence to 12 months imprisonment to reflect the mitigating factor and the remand period.

[18] Elifasa Uili, I sentence you to 12 months imprisonment for indecent assault. There are no special circumstances to suspend the sentence.

[19] For the offence of rape, I pick 7 years as my starting point. I increase the sentence to 8 years to reflect the aggravating factors and reduce to 6 years to reflect the mitigating factors and the remand period.

[20] Saila Asaeli, I sentence you to 6 years imprisonment for rape with a non-parole period of 4 years.

Daniel Goundar
JUDGE

At Labasa
10 February, 2011

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