State v Waqavauvau [2013] FJHC 490; HAC132.2012 (27 September 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 132 OF 2012

BETWEEN:

THE STATE

AND:

SITIVENI WAQAVAUVAU

Counsel : Ms. Fong with Mr. R. Kumar for the State
Ms. V. Tamanisau for the Accused

Date of Sentencing : 27th September 2013

SENTENCE

It is hereby ordered that the name and the identity of the victim to be suppressed permanently.

1. Sitiveni Waqavauvau, you stand convict to one count of Rape: contrary to section 207 (1)(2)(a) of the Crimes Decree 2009 on your own plea of guilty recorded on 23rd of September 2013. This matter was fixed for trial on that day and the prosecution was ready to proceed with their case. Before the commencement of the trial, your counsel informed court about your change of mind and you confirmed that the 'change' is voluntary.
   
2. The information filed against you by the Director of Public Prosecution (DPP) contains the following statement of offence and the particulars.
   

Statement of Offence (a)

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

Particulars of Offence (b)

SITIVENI WAQAVAUVAU, on the 30th day of March 2012 at Suva in the Central Division had carnal knowledge of a woman namely S.M. without her consent.

3. Upon you pleading guilty to the above charge, the Summary Of Facts was read to you in open court. You agreed and admitted the same to be correct. According to the admitted Summary Of Facts, you were in a de-facto relationship with Ms. S.M. (who was 28 years of age) and been dating for about 7 years at the time of this incident. You had entered to her bedroom around 3 am - 4 am on 30th of March 2012 without her knowledge, armed with a knife and threaten to kill her by pointing the knife to her neck.
   
4. The victim had surrendered to you been so scared and defenseless. Then you had forcefully proceeded to have sexual intercourse. The request of the victim for you to leave after the alleged sexual intercourse had been refused by you. After a while, you had demanded to have sexual intercourse again. The victim, after pretending that she is going to use the toilet before performing sex, had managed to deceive you and escape from your control. Then the victim had run to Ms. Jemina Tuiloma, her neighbour and informed Ms. Tuiloma of everything that happened and went to report the matter to police.
   
5. You in your caution interview, had admitted that you were armed with a knife when went to see the victim because you were angry with her for some reason. Further, you had admitted that you had sexual intercourse with the victim and you did not leave her premises, though she asked you to leave.
   
6. The maximum penalty for the offence of Rape is life imprisonment. The tariff ranges from 7 – 15 years when an adult victim is involved. (see Mohammed Kasim v The State, Criminal Appeal No. AAU 0021j.93S (1994) (FJCA 25, (27 May 1994); Bera Yalimaiwai v The State, Criminal Appeal Case No. AAU 0033 of 2003, Navuniani Koroi v The State, Criminal Appeal Case No. AAU 0037 of 2002, Viliame Tamani v The State, Criminal Case Appeal Case No. AAU 0025 of 2003, The State v Bijendra Criminal Case No. HAC 127 of 2011).
   
7. It is emphasized by the courts of this jurisdiction time and again that rape is the most serious sexual offence and therefore the sentence of such offence must reflect the increasing public intolerance and outrage by meting out harsher sentences.
   
8. In this background, I take a starting point of 8 years imprisonment in this instance.
   
9. Now I turn to identify the aggravating factors of this offending. The accused and the victim had been in a de-facto relationship for 7 years. The widely held myth, that a male partner cannot rape his female counterpart, has a very minimal validity in the modern context. Even though one might think that rape by a partner is not that serious when compared to a rape committed by a stranger, it can be extremely serious, as it would amount to a blatant breach of trust by someone once loved and shared the life with. The use of a weapon, more precisely, a knife, brandished against the victim's neck with threats to kill her and capitalize her fear psychosis to execute the act of rape, adds more aggravation to the offending.
   
10. As the learned prosecutor correctly pointed out, the home invasion by you in the early hours of the day in issue, around 3 am – 4 am, would have made the victim more insecured and vulnerable as she was kept in hostage in the most safest place that she can think of. On the other hand, as the 'Victim Impact Statement' reflects, the victim had to suffer a serious embarrassment as she had to relate this incident to her neighbor and another person. She has to face these personalities in her day to day life and must be feeling very small and demeaned. It seems that the victim is undergoing a continuous emotional distress, as stated in the 'Victim Impact Statement', to an extent where she is scared of being in another relationship. These are the factors this court identifies as the aggravating grounds of this particular instance.
    
11. In mitigation the following grounds were averred by the learned defence counsel. You are:
    
    • A 1st offender of 34 years of age,
    • A carpenter and was earning to support your grandparents,
    • Though not at the earliest possible instance, have pleaded guilty to the charge without going for a full hearing,
    • Apologetic and remorseful towards the victim and;
    • Co-operative with the police and in fact admitted to the offence during the caution interview as well.
      

This court, among other mitigatory factors, is ready to appreciate the two main grounds, that you are a 1st offender and pleaded guilty to the charge without going for a full hearing. Your unequivocal plea of guilty shows the true colours of remorse and it is visible from the very outset that you were ready to bore the culpability of your own action.

12. In this background I add 5 years imprisonment to the starting point for all the aggravating factors stated in paragraphs 9 and 10. I deduct 4 years imprisonment out of that interim period for all the mitigatory grounds mentioned in paragraph 11. Your final sentence now remains as 9 years imprisonment.
    
13. It was informed to court by both parties that you have been in remand custody since 30th of March 2012. That period is 1 year and six months. In terms of section 24 of the Sentencing and Penalties Decree 2009, I order that period to be reduced from your final sentence of 9 years imprisonment. Thus, now the period you have to serve in remand custody is 7 years and 6 months.
    
14. In terms of section 18 (1) of the Sentencing and Penalties Decree 2009, I order a period of 5 years before you being eligible to any parole.
    

Janaka Bandara
JUDGE

At Suva
27th September 2013

Office of the Director of Prosecutions for the State
Office of the Legal Aid Commission for Accused