State v Walesi [2013] FJHC 64; HAC164.2012 (22 February 2013)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 164 OF 2012

BETWEEN:

STATE

AND:

JONE WALESI

Counsel : Mr. S. Babitu for State
Accused Person in Person

Date of Sentence : 22nd February 2013

SENTENCE

[1] The Accused above named is charged with one count of Rape and one count of Indecently Annoying a Person punishable under Section 207(1), 2(b) and 213 (1) (b) of the Crimes Decree.

[2] When the case was mentioned to take plea for the first time the Accused pleaded guilty to the charges and admitted to the summary of facts.

[3] According to the Summary of Facts the Accused is 27 years old and the virtual Complainant is 15 years old and they are related. On the 12th November 2012 the victim was woken up by her grandfather to feed the baby. When she was preparing the milk the Accused who came there embraced her and inserted his two fingers into her vagina. On the 14th November 2012 he had dragged her to the bedroom and laid her down. When the mother of the Complainant entered she saw this and complained to the police.

[4] Considering the plea to be unequivocal this Court has found the Accused guilty and convicted as charged.

[5] Law

Section 207 (1) of the Crimes Decree prescribes imprisonment for life as maximum sentence for the offence of Rape.

[6] Section 213(1) of the Crimes Decree prescribed maximum sentence for indecently insulting or annoying any person as one year imprisonment.

Tariff:

[7] In a case with some similarities to this case Shameem J in The State v
Navauniani Koroi (unreported) Cr. App. Case No. HAA0050.2002S arrived at a sentence of 12 years and explained:

"Taking the 7 years as the starting point, I increase the term by two years for the young age of the complainant, and a further three years for the fact that she is your daughter. I add a further year for the resulting pregnancy. I reduce the term by one year for the guilty plea and other mitigation ...."

[8] In The State v Peniasi Senikarawa (unreported) High Court Suva Cr. Case HAC 0017.2008S; 20 May 2003 the accused was sentenced to 11 years imprisonment. Shameem J started on the tariff at 7 years. The mitigation was that the accused had a good character, was hardworking and struggling to raise his son single handed. But for being in breach of his position of trust to his 14 year old step-daughter, for the beatings he gave her, and for the fact that she had to give evidence twice, the court imposed a further 4 years.

"The Courts made it clear that rapists will be dealt with severely. Rape is generally regarded as one of the gravest sexual offences. It violates and degrades a fellow human being. The physical and emotional consequences to the victim are likely to be severe. The Courts must protect women from such degradation and trauma. The increasing prevalence of such offending in the community calls for deterrent sentences."

[9] In R v M [1988] VSCA 68 (7 October 1998) the Supreme Court of Victoria – Court of Appeal held for the count of oral rape that the accused be sentenced to 6 years. We wish to draw attention to the fact here that the complainant was an adult and also the accused had been charged for other offences in this case. But the seriousness of the count of oral rape still reflects the sentence given and in the case before the Court this involves a child.

[10] Considering the decided case the tariff varies from 2 years to 16 years imprisonment.

[11] Considering the facts of the case I commence your sentence at 11 years imprisonment.

[12] Aggravating factors

1. The victim was 15 years old;
2. She was related to you;
   

Considering these factors I increase your sentence by one year now your sentence is 12 years imprisonment.

[13] Mitigating circumstances

1. You have pleaded guilty at the first given opportunity;
2. You are first offender;

100. Your elderly parents depends on you;

4. You are the sole breadwinner of your family;
5. You are remorseful;
6. Your period in remand (from November 2012)
7. You seek forgiveness
   

Considering all your mitigating circumstances I reduce your sentence by 5 years now your sentence is 7 years imprisonment.

[14] Section 4(1) & (2) of the Sentencing & Penalties Decree states as follows:

"4. — (1) The only purposes for which sentencing may be imposed by a court are —

(a) to punish offenders to an extent and in a manner which is just in all the circumstances;

(b) to protect the community from offenders;

(c) to deter offenders or other persons from committing offences of the same or similar nature;

(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) to signify that the court and the community denounce the commission of such offences; or

(f) any combination of these purposes.

(2) In sentencing offenders a court must have regard to —

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender's culpability and degree of responsibility for the offence;

(e ) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender's previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option."

[15] You submit that in your statement to the police you have explained everything accordingly, you had done this act in the process of love making, further the virtual complainant who is 15 years old didn't complain to her mother but the mother had seen you in the bedroom on the second day hugging her.

[16] You are seeking a suspended and lenient sentence. Considering the nature of the offence I do not wish to suspend the sentence anyhow, every case must be decided on its own merits. Considering the facts of the case and your submissions I find you are genuinely remorseful hence I act under Section 18(2) of the Sentencing & Penalties Decree and decline to give a non parole period.

[17] You are sentenced to 7 years imprisonment.

[18] You have 30 days to appeal to Court of Appeal.

S. Thurairaja
Judge

At Lautoka
22 February 2013

Solicitors: The Office of the Director of Public Prosecution for State
Accused appeared in Person