State v Vuniwai [2013] FJHC 127; HAC073.2011S (21 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 073 OF 2011S

STATE

vs

DAMASO VUNIWAI

Counsels : Mr. J. Niudamu for the State
Ms. N. V. Tamanisau for Accused

Hearings : 18th and 19th March, 2013
Summing Up : 20th March, 2013
Judgment : 20th March, 2013
Sentence : 21st March, 2013

SENTENCE

1. In a judgment delivered yesterday (ie. 20th March, 2013), the court found you guilty and convicted you, on the following information:
   

Statement of Offence

RAPE: Contrary to Section 207(1) and Section 207(2)(b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

DAMASO VUNIWAI on the 29th of October, 2010 at Nasinu in the Central Division with his finger penetrated the vagina of U. A. V. L. M, without her consent.

2. The brief facts were as follows. On 29th October, 2010, the complainant was 17 years old and a Form 4 student. You were 20 years old, and unemployed at the time. You were the complainant's uncle, and both of you resided in a house in Kinoya. At about 11.50 pm on 29th October, 2010, the complainant went to sleep in the sitting room of the house. While she was asleep, you snuck up to her, close her mouth with one hand, and forcefully removed her clothes. She resisted but you overpowered her. You then touched her vagina, and inserted a finger into the same, without her consent. At the time, you knew she was not consenting to the same. A taxi arrived outside the house, and this made you flee into your room.
   
3. As I have said in State v Peceli Roba, Criminal Case No. HAC 133 of 2011S, High Court, Suva, "...Previously, what you did was often classified as indecent assault, in the repealed Penal Code, Chapter 17. Under the Crimes Decree 2009, it is now classified as rape, and as such, the penalties accorded to rape must apply..."
   
4. Rape is a serious offence. The maximum sentence is life imprisonment. For adults, the tariff is a sentence between 7 to 15 years imprisonment: 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. The actual sentence will depend on the aggravating and mitigating factors.
   
5. In this case, the aggravating factors were as follows:
   
   • (i) You were in a position of trust to the complainant. You were the complainant's uncle, and as such, you were supposed to care for her, and look after her. Instead, you abused your position of trust, and raped her.
     
   • (ii) You knew she was a Form 4 student, at the time. You know how people value a good education in Fiji. You also knew she was a hard working student, at the time. She often got up at 4 am in the morning to do her studies. You ruined her education, as a result of what you did to her. Now, she has left her education because she couldn't concentrate any more.
     
   • (iii) You have ruined the quality of how she lived life. Before, she was outgoing. Now she is reserved, and has lost trust on her friends and peers. Because you are from the paternal side of her family, she has lost trust in her paternal side of the family. She is now fearful most of the time. You must accept that by compromising the complainant's right to a quality life, you will have to forfeit your liberty, for a while.
     
6. The mitigating factors were as follows:
   
   • (i) At the age of 22 years, this is your 1st offence;
   • (ii) You are a young offender, and reside with your parents, at Tailevu;
   • (iii) You were remanded in custody from 4th March 2011 to 27th June 2011 – a period of approximately 4 months.
     
7. I start with a sentence of 7 years imprisonment. I add 3 years for the aggravating factors, making a total of 10 years imprisonment. I deduct 2 years imprisonment for the mitigating factors, leaving a balance of 8 years imprisonment.
   
8. In summary, for raping the complainant, by unlawfully inserting your finger into her vagina, without her consent, on 29th October, 2010, I sentence you Damaso Vuniwai to 8 years imprisonment, with 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.