State v Bavesi [2015] FJHC 223; HAC200.2013S (27 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 200 OF 2013S

STATE

vs

TARAJIANI BAVESI

Counsels : Mr. M. Vosawale and Ms. Lodhia for State
Ms. M. Tarai for Accused
Hearings : 16, 17 and 18 March, 2015
Summing Up : 19 March, 2015
Judgment : 20 March, 2015
Sentence : 27 March, 2015

SENTENCE

1. In a judgment delivered on 20 March 2015, you were found guilty and convicted of four counts of rape in the following information:
   

COUNT ONE

Statement of Offence

RAPE: Contrary to section 207 (1) and (2)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

TARAJIANI BAVESI on the 13th day of May 2013, at Wainibuku Cemetery, Nasinu in the Central Division, had carnal knowledge of V. L without her consent.

COUNT TWO

Statement of Offence

RAPE: Contrary to section 207(1) and (2)(c) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

TARAJIANI BAVESI on the 13th day of May, 2013 at Wainibuku Cemetery, Nasinu in the Central Division, penetrated the mouth of V. L with his penis, without her consent.

COUNT THREE

Statement of Offence

RAPE: Contrary to section 207(1) and (2)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

TARAJIANI BAVESI on the 13th day of May, 2013 at Wainibuku Cemetery, Nasinu in the Central Division, had carnal knowledge of F. K without her consent.

COUNT FOUR

Statement of Offence

RAPE: Contrary to section 207(1) and (2)(c) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

TARAJIANI BAVESI on the 13th day of May, 2013 at Wainibuku Cemetery, Nasinu in the Central Division, penetrated the mouth of F. K with his penis, without her consent.

2. The brief facts were as follows. On 13 May 2013, the complainants' cousin reported that his mobile phone was stolen. It was suspected that the complainants allegedly stole his mobile phone. The matter was reported to Nakasi Police Station. The accused, a police officer, attended to the complaint at the complainants' residence at Wainibuku. The accused requested that the two complainants and another accompany him to Nakasi Police Station. They took a short cut through Nasinu Cemetery. At a concrete grave, the accused said, he was going to interrogate complainant no. 1 (PW1), and for complainant no. 2 (PW2) and the other to take the lead to Nakasi Police Station.
   
3. While interrogating PW1, the accused told her they could resolve the problem there, and for her not to worry about the alleged mobile phone theft case. He then proceeded to forcefully rape complainant no.1 in the manner described in counts no. 1 and 2. Thereafter, he took PW1 to Nakasi Police Station, and left her there. He took PW2 through the Nasinu Cemetery to recover the alleged stolen mobile phone from Wainibuku. When reaching a concrete grave, the accused told PW2 they could resolve the case among themselves. If they can't, both PW1 and PW2 would be arrested. PW2 told the accused, she did not know what to do. Suddenly, the accused forcefully raped PW2 in the manner described in counts no. 3 and 4. When offending against PW1 and PW2, the accused never got their consent, and he well knew they were not consenting to the sexual acts.
   
4. The offence of rape is always a serious offence. It carries a maximum penalty of life imprisonment. Previous case laws have set a tariff of 7 to 15 years imprisonment for the rape of an adult. In any event, the final sentence will depend on the aggravating and mitigating factors.
   
5. The aggravating factor in this case were as follows:
   
   • (i) Breach of Trust: A policeman when investigating a case against a suspect is in a position of trust visa vi the suspect. He must deal with the suspect according to law. He must investigate the suspect in accordance with the law. He must not abuse his authority as a policeman when investigating an alleged crime. In this case, you abused your authority as a policeman when you raped the two young suspects. In fact, you had breach the trust the public had bestowed on you in not acting in accordance with the law.
     
   • (ii) By offending against the two complainants, you showed utter disregard to their right as human beings and to their dignity.
     
6. The mitigating factors were as follows:
   
   • (i) At the age of 41 years, this is your first offence;
   • (ii) Your family has broken down as a result of your offending;
   • (iii) You have been remanded in custody since 15 May 2013, that is, 1 year 10 months ago.
     
7. On count no. 1, I start with a sentence of 13 years imprisonment. I add 3 years for the aggravating factors, making a total sentence of 16 years imprisonment. I deduct 1 year 10 months, for time spent in remand while awaiting trial, leaving a balance of 14 years 2 months. For the other mitigating factors, I deduct another 1 year 2 months, leaving a balance of 13 years imprisonment. On count no. 1, I sentence you to 13 years imprisonment.
   
8. For count no. 2, 3 and 4, I repeat the above process and sentence.
   
9. In summary, your sentences are as follows:
   

(i) Count no. 1:	Rape:	13 years imprisonment.
(ii) Count no. 2:	Rape:	13 years imprisonment
(iii) Count no. 3:	Rape:	13 years imprisonment
(iv) Count no. 4:	Rape:	13 years imprisonment

10. Because of the totality principle of sentencing, I direct that all the above sentences are to be made concurrent to each other, making a total sentence of 13 years imprisonment.
    
11. Tarajiani Bavesi, for raping the two complainants on 13 May 2013 at Nasinu in the Central Division, I sentence you to 13 years imprisonment, with a non-parole period of 12 years imprisonment, effective forthwith.
    
12. The names of the two complainants are permanently suppressed to protect their privacy.
    

Salesi Temo

JUDGE

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

Solicitor for the Accused : Legal Aid Commission, Suva.