State v Qiokata [2015] FJHC 193; HAC141.2010 (18 March 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 141 OF 2010

STATE

-v-

JOSEVA QIOKATA

Counsels : Mr. Josaia B. Niudamu for the State
Ms. Senikavika L. Jiuta for the Accused

Date of Trial : 04 March 2015 to 05 March 2015
Date of Summing Up : 06 March 2015
Date of Judgment : 06 March 2015
Date of Sentence : 18 March 2015

(Name of the victim is suppressed she is referred to as JR)

SENTENCE

1. The accused is before the Court for sentence, after being convicted to the following charge.
   

Statement of offence

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

Particulars of Offence

JOSEVA QIOKATA on the 8th day and 9th day of September, 2010 at Nadi, in the Western Division inserted his penis into the vagina of JR without her consent.

2. You pleaded not guilty to above charge. Following trial lasting three days in this Court, you were found guilty on above count against you.
   
3. After considering the unanimous verdict of Guilty of the assessors and having reviewed the evidence and summing up in this trial, the Court decided to concur with the verdict of the assessors and found you guilty of the above charge and convicted you.
   
4. The following facts were proven in evidence during the trial. The 22 year old victim JR was married with two children. She was 4 months pregnant. You are from the same settlement. You had invited the husband to go to a night club. You have left him there and come to the complainant's house. You forced open the door, dragged the victim out and raped her.
   
5. You had no remorse for your above conduct.
   
6. You are not a first offender.
   
7. According to the Crimes Decree, the maximum punishment for rape is Imprisonment for Life. It is a serious offence. The tariff for rape is well settled since the Judgment of Hon. Mr. Justice A.H.C.T. Gates in State v Marawa [2004] FJHC 338; HAC 0016T.2003S (23 April 2004). The starting point of a rape of an adult is 7 years. The tariff is 7 years to 15 years.
   
8. In Mohamed Kasim v The State (unreported) Fiji Court of Appeal Cr. Case No. 14 of 1993; 27 May 1994, the Court of Appeal observed
   

"We consider that at any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment of seven years. 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. We must stress, however, that the particular circumstances of a case will mean that there are cases where the proper sentence may be substantially higher or substantially lower than that starting point."

9. Considering the above, I commence your sentence at 7 years imprisonment.
   
10. Aggravating factors;
    
    • (a) Victim is your neighbor, you breached the trust between neighbors
    • (b) You are not remorseful
    • (c) This is a planned offence
    • (d) The victim was pregnant
      

Considering all, I increase your sentence by 4 years, now the sentence is 11 years imprisonment.

11. Mitigating circumstances;
    
    • (a) Family depending on you and you are father of three children
      
12. Considering above, I reduce 1 year from your sentence now your sentence is 10 years imprisonment.
    
13. You were in remand from 10.9.2010 to 28.9.2010 and again from 3.3.2014 to 26.3.2014 for a period of 41 days. I deduct that 2 months from your sentence. Now your sentence is 9 years and 10 months.
    
14. Considering Section 18 (1) of the Sentencing and Penalties Decree, I impose 8 years as non-parole period.
    
15. You are sentenced to 9 years and 10 months imprisonment. You will not be eligible for parole until you complete serving 8 years of imprisonment.
    
16. 30 days to appeal to Court of Appeal.
    

Sudharshana De Silva
JUDGE

At Lautoka
18th March 2015

Solicitors : Office of the Director of Public Prosecutions for the State
Office of the Legal Aid Commission for the Accused