State v Sovuna [2011] FJHC 756; HAC240.2010 (22 November 2011)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC. 240 OF 2010

BETWEEN:

STATE
PROSECUTION

AND:

SIMIONE SOVUNA
ACCUSED PERSON

Counsel: State - Ms. J. Cokanasiga
Accused - In person

Dates of Hearing: 14th and 15th November 2011

Date of Summing Up: 16th November 2011
Date of Judgment: 17th November 2011
Date of Sentencing: 22nd November 2011

SENTENCE

[1] The accused Simione Ratulevu Sovuna you stand convicted of the offence of Rape contrary to Sections 207(1) and 207(2)(b) of the Crimes Decree 2009.

[2] The brief facts of the case were that you were sleeping beside the victim and while she was sleeping, you hugged her and inserted your finger into her vagina. The victim was woken up by your actions and she got up and ran away to her brother's room. The victim is your niece, your cousin sister's daughter, and was 17 years old at the time of the incident.

[3] The maximum sentence for the offence of Rape is life imprisonment. Under the Penal Code Cap 17, definition of the offence of Rape was penetration of vagina with the penis without the victim's consent. Crimes Decree 2009 introduced a new definition for rape, including penetration of a thing or a part of the person's body that is not a penis into the victim's vulva, vagina or anus without the victim's consent. In this case the accused inserted his finger into the victim's vagina without her consent.

[4] The tariff for rape of a child is between 10 - 14 years imprisonment. (Mark Lawrence Mutch v. State Crim.App. No. AAU 0060 1999; Mani v. State, Crim.App.HAA 0053.02L; State v. Saitava, Crim.Case No. HAC 10/07, State v. Tony Cr. App. No. HAA 003/08).

[5] In the case of Kasim v. State (1994) FJCA 25; AAU 0021j.93S (27 May 1994) it was decided that the starting point for sentencing an adult in any rape case without aggravating or mitigating features, should be a term of imprisonment of 7 years.

[6] In Mohammed Kasim's case court said:

"While it is undoubted that the gravity of rape cases will differ widely depending on all the circumstances, we think the time has come for this Court to give a clear guidance to the Courts in Fiji generally on this matter. We consider that in any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment of seven years. It must be recognized by the Courts that the crime of rape has become altogether too frequent and that the sentences imposed by the Courts for that crime must more nearly reflect the understandable public outrage. We must stress, however, that the particular circumstances of a case will mean that there are cases where the proper sentence may be substantially higher or substantially lower than that starting point".

[7] In this case the age of the victim was 17 years at the time of the incident. In terms of the Juveniles Act a child is defined as a person who has not attained the age of 14 years. Age of a juvenile in terms of the Juvenile Act as amended by Section 57 of the Prisons and Corrections Act 2006 is, 18 years.

[8] I consider that the victim in this case who was 17 years old at the time of the incident, was neither a child nor a young person but a juvenile in terms of the Juveniles Act.

[9] In case of State v. Tauvoli (2011) PJHC 216, High Court sentenced the accused who was the step father of the 13 year old victim child, to 13 years imprisonment. In case of Vasu and Anor v. State (2005) FJHC 114, the six years imprisonment sentence for rape of a 15 year old was affirmed.

[10] The aggravating factors in this case are that the victim is the niece of the accused, (Accused cousin's daughter) and he breached the trust.

[11] Mitigating factors submitted by the accused are, that he is remorseful and seeks forgiveness from court, he is married with 2 children aged 5 years and 3 years. His four sisters depend on him as his father passed away. His wife is expecting another child. He is the sole bread winner of the family. I also consider that he has no previous convictions.

[12] I take 7 years imprisonment as the starting point and add 3 years to reflect the aggravating factors. I reduce 3 years to reflect the mitigating factors above and deduct another 1 year for his previous good behavior.

[13] Therefore your final sentence is 6 years imprisonment. Acting in terms of Section 18(2) of the Sentencing and Penalties Decree 2009 considering the facts and circumstances of the case, and the past history of the accused I decline to fix a non-parole period.

[14] Finally the accused is sentenced to 6 years imprisonment.

Priyantha Fernando
Judge

At Suva
22nd November 2011