State v Karuru [2012] FJHC 1164; HAC32.2010 (13 June 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 32 OF 2010

BETWEEN:

STATE

AND:

TANIELA KARURU

Counsels : Ms. S. Kiran for the State
Ms. V. Tamanisau for the Accused

Date of Trial : 1st, 4th, 5th & 6th June, 2012
Date of Summing Up: 7th June 2012
Date of Judgment: 8th June 2012
Date of Sentence
Hearing : 12th June 2012
Date of Sentence : 13th June 2012

SENTENCE

1. The Accused above named is charged with Rape, punishable under section 207 (1), (2)(a) of the Crimes Decree.
   
2. After the trial all three Assessors unanimously found the Accused guilty. The Court also found him guilty and convicted him as charged.
   
3. Evidence revealed that the victim who was 18 years old, and had gone to attend a Funeral on the 16/4/2010. Late in the evening she had gone out with her friends to Lautoka City. Late in the night she had lost her friends and walked back to her uncle's place at Natokowaqa. On the way to home the Accused encountered her and attacked her by punching on the face. When she fell down the Accused had hit her with a stone on the face. After making the victim weak the Accused raped her. She was taken to hospital and hospitalized for 5 days due to the injuries on the face, jaw and her vagina.
   
4. Section 207 (1) of the Crimes Decree prescribes imprisonment for life as maximum punishment.
   
5. Tariff for the offence of Rape was discussed in many cases. It is between 7 years to 15 years imprisonment.
   
6. In Kasim v State (1994) FCA 25: AAU 0021J.93S (27 May 1994), the Fiji Court of Appeal observed as follows:
   

"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. Considering the nature of the offence I commence your sentence at 10 years imprisonment.
   
8. Considering the aggravating factors:
   
   1. The victim was an 18 year old girl.
   2. She was virgin.
   100. You punched her on the face.
   4. You assaulted her with a stone on her face.
   5. Victim was severely injured and hospitalized.
   6. The vagina of the victim was torn and the Doctors had to stitch the injuries.
   7. The victim was traumatized (even at the time of giving evidence).
   8. You were under the influence of alcohol.
      

Considering all I increase your sentence by 8 years. Now your sentence is 18 years imprisonment.

9. Considering your mitigating circumstances:
   
   1. You submit you are married and have two schooling children.
   2. You submit you have to support your family and your parents.
   100. You ask for forgiveness of the Court.
   4. You submit you are remorseful.
   5. You promise Court that you will not re-offend and you will not step into the Court again.
   6. You ask for lenient sentence with another chance. (I am unable to accept last three factors because you have 12 previous convictions within last 6 years and presently you are serving a sentence. In the meantime I am not considering these factors as aggravating factors).
      

Considering the above I reduce 3 years from your sentence. Now your sentence is 15 years imprisonment.

10. In State v Lasaro Turagabeci and others (unreported) Suva High Court HAC 0008.1996S, Pain J. said:
    

"The Courts made it clear that rapists will be dealt with severely. Rape is generally regarded as one of the gravest sexual offences. It violates and degrades a fellow human being. The physical and emotional consequences to the victim are likely to be severe. The Courts must protect women from such degradation and trauma. The increasing prevalence of such offending in the community calls for deterrent sentences."

11. Your Counsel asks for a lenient sentence and makes an application under section 18 (2) of the Sentencing & Penalties Decree and not to impose a non parole period.
    
12. I seriously consider the above application and totality principle of sentencing in the light of the interest of the victim and the community at large.
    
13. You are married and have two children but you have acted in an inhuman way in assaulting the teenage victim who was virgin at the time. Further due to your act she received injuries on her face, jaws and the vagina. The victim is still traumatized. Virtually you have ruined a teenage girl's life therefore I consider under section 18 (1) of the Sentencing & Penalties Decree and impose you 13 years as non parole period.
    
14. I am informed that you are serving a sentence at present. I order to implement this sentence consecutive to your present sentence.
    
15. You are sentenced to 15 years imprisonment. This sentence will commence from 29th May 2013 and you will not be eligible for parole until you complete 13 years imprisonment.
    
16. 30 days to appeal to Court of Appeal.
    

S. Thurairaja
Judge

At Lautoka
13th June 2012

Solicitors : The Office of the Director of Public Prosecution for State
Legal Aid Commission for the Accused