State v Vueti - Sentence [2015] FJHC 1004; HAC248.2015 (11 December 2015)

IN THE HIGH COURT
OF SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 248 OF 2015

STATE

vs

ESALA VUETI

Counsel: Ms S Lodhia & Ms U Tamanikaiyaroi for the State
Mr A Paka for the Accused

Date of Trial : 1/12/15; 2/12/15; and 3/12/15
Summing Up : 4 December 2015
Judgment : 7 December 2015
Sentence : 11 December 2015

Name of the victim is permanently suppressed and referred to as T.B.

SENTENCE

[1] Mr. Esala Vueti, after being convicted on two counts of Rape, contrary to Section 207(1),(2)(a) and Sexual Assault, contrary to section 210(1)(a) of the Crimes Decree No. 44 of 2009, you are now brought before this Court for imposition of your sentence.

[2] You pleaded not guilty to the above mentioned charges. The ensuing trial lasted for three days in this Court; during which, the complainant, her mother and a medical witness gave evidence for Prosecution, while you offered evidence for the Defence.

[3] At the conclusion of trial; having reviewed the evidence and it's summing up to assessors, this Court decided to accept their unanimous opinion and found you guilty and convicted you of the said three charges.

[4] The following facts were proved during the trial:

(i) The Complainant is your adopted daughter and you raised her from infancy. You provided for her education up to High School. She was living with you at the time of offending.

(ii) On a Saturday morning, during the 1st term of the year 2015, you asked the complainant to close the door and stand besides the bed. You asked her to remove her pants, and lie down on bed. She complied. You then, put your penis out and inserted it into her vagina. She did not scream nor called out for help fearing a beating by you. She did not tell about this incident to anyone.

(iii) On 5th July 2015 at about 8.00 a.m. you returned from work drunk. You had a tablet with you. You called her in and when she came near you put your hand through her panties and moved your hand touching her vagina.

(iv) Thereafter you wanted her to go near the bed. Then you tried to remove her panties and had "started poking" her vagina with your finger.

[5] According to Section 207(1) of the Crimes Decree No. 44 of 2009, the maximum punishment for Rape is imprisonment for life. It is a serious offence.

[6] The complainant was 17 years of age at the time of the Rape and therefore, is a juvenile. The tariff for Rape of a juvenile is confirmed in the Judgment of Chief Justice Gates in Raj v State [2014] FJSC 12. The starting point of imprisonment for Rape of a juvenile is 10 years. The tariff is between 10 years to 16 years.

[7] In Mohamed Kasim v The State (unreported) Cr. Case No. 14 of 1993; of 27 May 1994, the Court of Appeal observed thus:

"It must be recognized by the Courts that the crime of rape has become altogether too frequent and that the sentences imposed by the Courts for that crime must more nearly reflect the understandable public outrage."

[8] In determining the starting point within the said tariff, Suresh Chandra J, in Laisiasa Koroivuki v State (Criminal Appeal AAU 0018 of 2010) has formulated the following guiding principles;

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range".

[9] Considering the nature of offending, and in the light of the above guiding principles, I commence your sentence at 11 years of imprisonment for each count of Rape.

[10] The aggravating factors are:

(i) Breach of trust the victim had towards you;

(ii) Significant degree of opportunistic planning;

(ii) Taking advantage of the victim's vulnerability;
(iii) Repetition of your criminal act;

(iv) Display of total disregard to the victim's wellbeing.

[11] The Victim Impact Assessment Report of the complainant reveals that she is still having the effects of her traumatic experience.

[12] I add 4 years on your sentence for above aggravating factors. Now your sentence is 15 years.

[13] The mitigating factors are:

(i) You are a first offender;
(ii) You are a 65 year old security guard;
(iii) You are married and supported your wife and your other children,
(iv) You looked after the complainant from her infancy and provided for her education up to High School level;
(v) No significant injury on victim;
(vi) No weapon was used on the victim;
(vii) Your son testified that you have looked after all your children properly and disciplined them with their wellbeing in mind;
(viii) You have contributed to the society you live in with your religious and social work.

[14] I deduct 4 years from your sentence for the above mitigating factors. Now the sentence is 11 years.

[15] The sentencing tariff for Sexual Assault is set at 2 to 8 years and was further elaborated in State v Laca [2012] FJHC 1414, by adding descriptive categories of severity to State v Kaiyum [2012] FJHC 1274. The act of sexual assault on the complainant by you could be considered as Category 2 (ii) since there was "contact with the genitalia of the victim by the offender using part of his body other than the genital". Therefore, you are imposed a sentence of 5 years on this Count.

[17] You were in remand for this case since your arrest on 5th July 2015.

[18] I deduct your five month long remand period from your sentence and now the sentence is 10 years 7 months for each count of Rape. I further order all these 3 sentence of imprisonments to run concurrently.

[19] You moved Court to consider desisting from imposition of a non parole period. The DPP objected. In applying the criterion laid down in the Section 18(2) of the Sentencing and Penalties Decree of 2009, this Court is of the view that it is not inappropriate to fix a non parole period. But this Court takes cognizance of the fact that you are a 65 years old person with previous good character, in fixing the non parole period.

[20] Considering Section 18 (1) of the Sentencing and Penalties Decree, I impose 6 years of non-parole period in view of the unreported judgement of Court of Appeal in Paula Tora v The State Crim App. No. AAU 0063/2011.

[21] Your final sentence is as follows:

(i) For a count of Rape – 10 years and 7 months of imprisonment.

Summary

[22] You are sentenced to 10 years and 7 months of imprisonment. You will not be eligible for parole until you complete serving 6 years of imprisonment.

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

Achala Wengappuli
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.

Solicitor for the Accused : Legal Aid Commission, Suva.