State v Volau [2013] FJHC 100; HAC068.2011S (8 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 068 OF 2011S

STATE

vs

VILIKESA VOLAU

Counsels : Mr. Y. Prasad for State
Mr S. Waqainabete for Accused
Hearings : 4th, 5th and 6th March, 2013
Summing Up : 7th March, 2013
Judgment : 7th March, 2013
Sentence : 8th March, 2013

SENTENCE

1. In a judgment delivered by the court yesterday, the accused was found guilty of raping a 14 year old female complainant, by inserting his finger into her vagina, without her consent, contrary to section 207(1) and (2)(b) of the Crimes Decree 2009. He was convicted accordingly.
   
2. The facts were briefly as follows. The complainant, while walking near a beach in Natauloa Village, Nairai, on 24th January, 2011, was suddenly grabbed by the accused, who was 49 years old, at the time. He then forcefully took off her sulu, her shorts and panty, and forced her to lie on the ground. He then knelt beside her, and inserted his finger into her vagina, without her consent. At the time, he knew the complainant was not consenting to the above. Matter was later reported to police, and the accused was charged with rape.
   

3. As I have said in State v Poate Rainima, Criminal Case No. HAC 034 of 2011S, High Court, Suva, "Rape" is always a serious offence. It carries a maximum sentence of life imprisonment. It is the worst form of sexual assault on an individual. It is an unwanted invasion of a person's body without that person's consent. Consequently, the courts take a dim view of it, and have set a tariff of 7 to 15 years imprisonment. The worse form of rape is reserved for the higher end of the tariff. See Mohammed Kasim v The State, Criminal Appeal No. 21 of 1993, Fiji Court of Appeal; Bera Yalimaiwai v The State, Criminal Appeal No. AAU 0033 of 2003, Fiji Court of Appeal; Navuniani Koroi v The State, Criminal Appeal No. AAU 0037 of 2002, Fiji Court of Appeal and Viliame Tamani v The State, Criminal Appeal No. AAU 0025 of 2003, Fiji Court of Appeal.

4. The mitigating factors in this case were as follows:

(i) At the age of 51 years old, this is your first offence;

(ii) You are married with five children aged between 5 to 21 years old;

(iii) You are a subsistence farmer at Natauloa Village, Nairai, and you are the sole bread winner;

(iv) You have been remanded in custody, in this case, for approximately 6 months.

5. The aggravating factors were as follows:
   
   • (i) The complainant was 14 years old, at the time, and you were 49 years old. There was a 35 years age gap between the two of you, and one could say that, because you both resided in Natauloa Village Nairai, you stood in a position of an elder in the village, and consequently, in a position of trust. As an elder, you were supposed to look after and care for the village children. The complainant was old enough to be your child. Yet you exploited the trust she previously held for you, and unlawfully inserted your finger into her vagina. This was a serious breach of trust by a village elder. And for this breach of trust, you will have to accept that your liberty will have to be forfeited;
     
   • (ii) During the hearing, you unnecessarily defamed the character of this complainant, by saying she was watching blue movies, and she wanted you to perform some moves on her. In my view, these were outright lies by you, and they were totally unnecessary. In my view, the above were your own wild imagination.
     
6. I start with a sentence of 7 years imprisonment. For the aggravating factors, I increase the sentence by 3 years to 10 years imprisonment. I deduct the 10 years by 2 years for the mitigating factors, leaving a balance of 8 years imprisonment.
   
7. In summary, I sentence you to 8 years imprisonment and you are to serve a non-parole period of 7 years imprisonment, effective forthwith.
   

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecutions, Suva
Solicitor for Accused : Legal Aid Commission, Suva