State v Walili [2013] FJHC 226; HAC134.2012 (9 May 2013)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL JURISDICTION

Criminal Case No: HAC134 of 2012

BETWEEN :

THE STATE

AND :

JOSUA WALILI
ILIANI SUKALOA
SAILOSI LAWALIGANA

BEFORE : HON. MR. JUSTICE PAUL MADIGAN

Counsel : Ms L. Koto for the State
Mr. J. Savou with Ms L. Raisua (L.A.C)
for all accused

Dates of hearing : 1st & 2nd May 2013
Date of summing up : 3rd May 2013
Date of judgment : 3rd May 2013
Date of sentence : 9th May 2013

SENTENCE

[1] Josua Walili, Iliani Sukaloa and Sailosi Lawaligana, have each been found guilty and convicted of one count of rape in that in January 2012 on separate occasions, they did rape the same 17 year old girl in their village in Tailevu. Moreover Josua is convicted of a representative count of rape and evidence has been led of a second act of rape by him of the same girl.

[2] The facts of the case are that in the early days of the year 2012, a young girl who we shall call "N", moved into the village where these three young men lived to stay with her aunt there. In the middle of the night, soon after having arrived she went outside to relieve herself. Josua was standing nearby under a tree and saw her. He accosted her when she was washing herself outside and dragged her to the basement of a nearby house. He removed her clothes and his own, and he raped her there underneath that house. Unbeknown to him or N, Iliani was there watching. When Josua had finished with N, Iliani announced that it was his turn and proceeded to rape N himself.

[3] Sometime after that N went on a sports outing with a group of cousins and friends, playing volleyball and swimming in the sea. Josua, the first accused was in the mangrove trees nearby. When N was leaving he grabbed her by the hand and pulled her towards a mangrove tree where he undressed her, leant her against the tree and raped her.

[4] On another day somewhat later in the month, N went with her cousin to the home of the third accused to get a C.D. When they got there, the third accused sent the cousin away leaving just himself and N in the house. He removed her lower clothing and raped her.

[5] Rumours of these pursuits were rife in the village and the Pastor called a meeting to discuss matters. As a result of the meeting these three young men were apprehended.

MITIGATION

[6] Counsel for all three accused asked for leniency for these men; they being young with no previous criminal records. He even suggests that there could be a sentence which did not involve immediate imprisonment. Such a submission, in the light of public outrage and bewilderment at the number of rapes coming before the Courts, is unrealistic.

[7] The first accused is 23 and has no previous convictions. He worked as a farmer and fisherman earning approximately $50 per week. He is married with one very young child and another to be born in about 2 months. He was the only breadwinner in the family and was a regular church goer, even singing in the church choir.

[8] The second accused is 28 years of age with a clear record and worked as a self employed carpenter earning $70 a week when he did have work. He is single and lives with an uncle.

[9] The third accused is 27 also with a clear record, and he too works as a farmer earning but $40 per week. He is married, with three young children.

[10] The authorities dictate that sentences for the rape of a minor must be in the region of 10 to 15 years (Kasim Cr App 21 of 1993; Bera Yalimaiwai AAU0033/2003; Koroi AAU0037/02).

[11] These offences were rapes that were opportunistic and which took advantage of a simple young lady who the court saw to be vulnerable and unsophisticated. She had recently arrived in the village and at least two of the rapes showed a degree of planning. There was no violence used on the girl but I regard that the advantage taken of this young lady to be aggravating.

[12] For each accused, I take a starting point of eleven years imprisonment in accordance with the authorities.

[13] The first accused faced a representative count and while he can be sentenced for only one rape among those represented by the Count, I regard it as an aggravating feature that the evidence showed that he had abused this same victim again in the mangrove swamp, soon after the first rape. For that aggravation and for the aggravation of taking advantage of an unsophisticated newcomer to the village, I add four years to the starting point bring the total up to 15 years imprisonment. For his comparative youth and a clear record as well as a recognition of his family circumstances, I deduct three years from that sentence meaning that the first accused will serve a total of 12 years imprisonment. He will serve a total of 9 years before being eligible for parole.

[14] The second accused is burdened with the same aggravation of taking advantage of a new comer young lady to the village. In addition to that, and on his own evidence, he was present when the first accused raped the victim, and seized the opportunity when that accused had left the girl to force himself on to her when she must have been in a distressed and helpless state. To the second accused's starting point of eleven years, I add to that three years for the aggravating features, bringing the total up to 14 years. For his mitigation of comparative youth, clear record and family circumstances, I deduct three years meaning that he will serve a total term of imprisonment of 11 years imprisonment. He will serve a total of 8 years before being eligible for parole.

[15] The third accused raped the victim when they were alone in his house, he having sent her companion away on an errand. I find that this particular rape was planned and that will then be an aggravating feature. I take the starting point and add three years for the degree of planning and the abuse of an unsophisticated newcomer, bringing the total to 14 years. For his clear record and comparative youth, I deduct three years meaning that he too will serve a sentence of 11 years with a minimum term of imprisonment of 8 years before being eligible for parole.

[16] A Summary

First accused: 12 years imprisonment with a minimum term of nine years;
Second accused: 11 years imprisonment with a minimum term of 8 years;
Third accused: 11 years imprisonment with a minimum term of 8 years.

Paul K. Madigan
JUDGE

At Suva
9th May 2013