State v Baleidreketi - Sentence [2015] FJHC 471; HAC058.2014LAB (25 June 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 058 OF 2014LAB

STATE

v.

SAMUELA BALEIDREKETI

Counsels : Ms. A. Vavadakua for State
Ms. L. Raisua for Accused

Hearings : 17 and 18 June, 2015
Summing Up : 19 June, 2015
Judgment : 19 June, 2015
Sentence : 25 June, 2015

SENTENCE

1. In a judgment on 19 June 2015, the court found you guilty and convicted you on the following information:

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

SAMUELA BALEIDREKETI between the 19th day and the 20th day of June 2014 at Seaqaqa, in the Northern Division had unlawful carnal knowledge of E.T. without her consent.

2. The brief facts were as follows. Between 19 and 20 June 2014, you were 51 years old, while the female complainant was 13 years 9 months old. You were the complainant's uncle, and you were her mother's elder brother. You lived in a settlement consisting of four houses, which were built next to each other. One of the houses was yours, the other the complainant's mother, and the third house belonged to a relative. The fourth house was the family church. On 19 June 2014, the complainant came to sleep with your children in your house, because her mother was away and her house was empty. After midnight you forcefully took the complainant to her mother's house. You then forcefully told her to lie on the floor. You then took her clothes off, and had sexual intercourse with her. When she wanted to raise the alarm, you blocked her mouth with your underpants. After having sex with her, you warned her not to tell anyone about the incident, or you will do something to her. The matter was later reported to police. You were charged, tried and convicted of her rape.

3. In State v Mosese Waqasaqa, Criminal Case No. HAC 059 of 2014LAB, I said the following: "..."Rape" as a criminal offence is always viewed seriously by the lawmakers of this country, and they had prescribed it a maximum sentence of life imprisonment (see sections 149 and 150 of the repealed Penal Code, Chapter 17; and section 207 (1) of the Crimes Decree 2009). Following the lawmakers' above intention, the courts had also viewed the offence of rape seriously, and on 20 August 2014, the highest Court in the land, the Supreme Court of the Republic of Fiji via a decision of His Lordship The Honourable Chief Justice, set the tariff for the rape of juveniles (i.e. under 18 years old) a sentence between 10 to 16 years imprisonment: Anand Abhay Raj v The State, Criminal Appeal Case No. CAV 0003 of 2014, Supreme Court of Fiji, Suva. Of course, the final sentence would depend on the aggravating and mitigating factors..."

4. The aggravating factors in this case were as follows:

(i) Breach of Trust. You were the female complainant's uncle. You were her mother's elder brother. You lived in a settlement with your family and your sister's family. You are an elder in the settlement, and as such, you are in a position of trust with other family members. It was your function as an elder to look after everybody and to see that their welfare were maintained and enhanced. You were 51 years old in June 2014, and the complainant was 13 years 9 months. You were supposed to see that the complainant's welfare was maintained and enhanced. However, you raped her in the early hours of 20 June 2014. You had breached the trust she had in you. You should not complain when your liberty is taken away to pay for your crime;

(ii) Rape of a child. This is yet another case of the rape of a child. The court will not stand idly by and watch the most vulnerable been exploited by adults. A deterrent sentence will be given to warn other would-be offenders;

(iii) By offending against the complainant, you have showed utter disregard to her human rights and her dignity.

5. The mitigating factors are as follows:
   

(i) At the age of 54 years, this is your first offence;

(ii) You had been remanded in custody since 26 June 2014, that is, approximately 1 year ago.

6. I start with a sentence of 13 years imprisonment. I add 3 years for the aggravating factors, making a total of 16 years imprisonment. I deduct 1 year for time already served while being remanded in custody, leaving a balance of 15 years imprisonment. I deduct another 2 years for being a first offender, leaving a balance of 13 years imprisonment.

7. Mr. Samuela Baleidreketi, for raping the complainant on 20 June 2014, I sentence you to 13 years imprisonment, with a non-parole of 10 years, effective forthwith.

8. The name of the complainant is permanently suppressed to protect her privacy.

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Labasa

Solicitor for the Accused : Office of the Legal Aid Commission, Labasa