State v Vibote [2012] FJHC 895; HAC081.2011 (27 February 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO :
HAC 081 of 2011

BETWEEN:

STATE –
Prosecution

AND:

LAISENIA KATO VIBOTE –
The Accused

Ms L Vateitei for the State
Mr E Maopa for the Accused

Dates of Trial : 13-15 February 2012
Date of Conviction : 16 February 2012
Submissions in mitigation : 24 February 2012
Date of Sentence : 27 February 2012

SENTENCE

Name of the victim is suppressed. She will be referred to as SP.

1. The accused stood charged on one count of rape punishable under Section 207 (1) (2) (b) of the Crimes Decree No 44 of 2009. The charge was sequel to an act of forcible vaginal penetration with a finger by the accused on 09 March 2011.
   
2. Evidence revealed that the victim, SP, 61 years of age, was living at Voivoi in Legalega with her husband. The accused, 21 years of age, used to visit his father in the same village for some time as the latter commenced a marital relationship with one Makareta Robanakadavu after separating from the accused's mother.
   
3. The accused, as he visited Legalega, used to bring coconuts to SP and also to work on sugarcane fields possessed by SP's husband and got to be in association with the victim's family.
   
4. On 09 March 2011, the victim was attending to her daily chores at home while the husband was away in Lautoka. The accused, having covered his head with a clothe, came to the place of SP and forcefully held her. She was subsequently driven inside her house under threat and was beaten up to control her cries. The accused, thereupon, undressed SP and inserted a finger into her vagina as she suffered pains as a result of accused's repeated acts of beating-up. SP had received lacerations on her labia minora, which the doctor opined as having been caused by forceful penetration into the vagina of a blunt object.
   
5. The accused, in his statements under caution, admitted the act of penetrating the victim's vagina with his finger as he failed to have erection in his penis.
   
6. It is in light of the evidence, as summarized above, that the accused stands convicted after trial upon the charge of rape.
   
7. The offence of rape, in terms of Section 207 of the Crimes Decree, attracts a maximum punishment of imprisonment for life. The term of imprisonment until the exhaustion of one's life is a clear indication to show how serious the offence is looked at by the law. In addition to the severity that could be gauged in terms of the sentence, sexual offences by their very constitution are serious in nature because law recognises no exculpatory or mitigatory defences. Courts, time and again, have emphasized the requirement of deterrence in imposing sentences on convicts of rape.
   
8. In Kasim vs State [1994] FJCA 25, the Court of Appeal of Fiji laid down the principle that the sentence for the offence of rape on an adult should have the starting point of seven years of imprisonment. Their Lordships of the Court of Appeal further held that:
   

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.
(Emphasis mine)

10. While concurring with the above ruling, the Fiji Court of Appeal again held in Drotini v The State [2006] FJCA 26 that:

The continuing frequency of such cases has resulted in a general increase in the levels of sentences ordered in rape cases by the courts in Fiji. We endorse that trend. We do not suggest that the starting point described in Mohammed Kasim's case should be altered in rape cases in general but the sentencing court should not hesitate to increase the sentence substantially where there are further aggravating factors.

11. Kasim's case, therefore, in my opinion must be viewed as a good authority to impose an enhanced sentence well above the starting point where aggravating circumstances are proportionately present and also to impose a lesser sentence than the starting point where court finds extenuating circumstances to be present.

12. Accordingly, a sentence could range between 7-15 years on the basis of existing aggravating and mitigating circumstances (State vs Tuwai [2011] FJHC 287; State vs Loco [2010] FJHC 465; State v Balemaira [2010] FJHC 539 and State v Dekanivalagi and another [2011] FJHC 383.

13. In cases of Balemaira and Dekanivalagi, a starting point of seven years was taken where the victims were married women and final sentences of four years and six years with no-parole were imposed respectively. In the case of former, the victim was 31 years of age, while the victim in the latter case appears to be of the same age who was subjected to dreadful physical violence by the abettor. In Loco's case, a starting point of ten years was taken for the offence of rape on a married woman, having regard to the extent of gross indecency and a non-paroled term of ten years was imposed.

14. The upshot of these authorities is that judicial discretion in the matter of sentencing is meant to be used judiciously bearing in mind the jurisprudential underpinning of balancing the competing interests of the offender, the victim/s and the society at large as envisaged by Sections 4(1), 4(2) and 15 (3) of the Sentencing and Penalties Decree No 42 of 2009. What is important to be borne in mind is that inasmuch as court could ascend from the starting point it can equally descend substantially on the basis of extenuating circumstances as effected in State v Vaileba (HCA 20 of 2011; 25 July 2011).

15. In this case, the victim was an elderly person with grown-up children, some of whom were in the age of the accused.
    
16. The accused took to his advantage the vulnerable circumstance that the victim was placed in with nobody else at home at the time of the incident. The conduct of the accused clearly shows that he abused the acquaintanceship that he had with the victim over his occupational dealings during his visits to Legalega. His invasion of the privacy of an elderly woman, having beaten-up in order to contain her, is abhorrent. The forceful penetration of the victim's vagina at the youthful might of the accused sounds a great degree of horrendousness and depravity.
    
17. The incident on the elderly woman has left a traumatic experience and stigmatized her femininity as she looks forward to a leisurely phase in latter part of her life.
    
18. In the circumstances, I would pick-up a term of nine years as the starting point. I would add another three years for the factors in paragraphs 15 and 16 above, which I consider to have aggravated the offence. I would add another two years for the factor set-out in paragraph 17 above and reach a term of fourteen years at the interim.
    
19. Learned counsel for the accused made a strong plea in mitigation and urged for leniency of court on the matter of the length of sentence. He submitted that:
    
    • (i) The accused was 22 years of age having born on 13 October 1989 and had no blemishes whatsoever; and, that he was a first offender;
      
    • (ii) The accused repented over the offence and pleaded for forgiveness;
      
    • (iii) The family of the accused was shattered in that the father had separated from the mother and that he was brought-up by the grandmother and the mother;
      
    • (iv) The accused had not reached a higher standard of education and he was living in indigent circumstances; and,
      
    • (v) That he had a younger sister to look after and that he was the sole breadwinner in his shattered family
      
20. I have carefully considered the submissions of learned counsel for the accused.
    
21. I, accordingly, reduce the sentence by three years for the fact that the accused was a first offender devoid of any past criminal record and for his plea for forgiveness. I reduce another two years for his shattered and indigent family background and return at nine year imprisonment.
    
22. Accordingly, I sentence the accused to a term of nine (09) years of imprisonment
    
23. Having regard to the facts of this case, I choose to act under Section 18 (1) of the Sentencing and Penalties Decree and order that the accused shall not be entitled to be released on parole until he serves a minimum term of eight (08) years in imprisonment. The term shall be deemed to have begun from 16 February 2012, the date of conviction.
    
24. The accused has 30 days to appeal to the Fiji Court of Appeal.
    

Priyantha Nāwāna
Judge
High Court
Lautoka
27 February 2012