State v Koli [2015] FJHC 638; HAC142.2014 (3 September 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 142 OF 2014

STATE

V

TUI MATEO KOLI

Counsels: Ms S Navia and Ms U Tamanikaiyaroi for the State
Ms T Kean for the Accused
Dates of Trial : 24-28 August 2015
Summing Up : 31 August 2015
Judgment : 1 September 2015
Sentence : 3 September 2015

SENTENCE

[1] Mr. TUI MATEO KOLI, after being convicted to the charge of Rape, contrary to Section 207(1),(2)(b) 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 above charge. The ensuing trial lasted forthree days in this Court; during which, the victim and two other witnesses gave evidence for Prosecution, while you offered evidence for the Defence.

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

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

(i) The victim in this case was about 19 years of age at the time of the incident. You were considered by the victim as her cousin's husband;

(ii) On 26th September 2013, under the pretext of giving her a lift to her school, you invited the victim to join you for a ride in your car;

(iii) You have persuaded the victim to consume four glasses of Rum mixed with Coke. Thereafter, having taken her in your car to a lonely spot, you have forcibly inserted your finger into her vagina. You continued for some time with your act, ignoring her pleas;

1. At a later point of time, the victim had to jump out of your car; in order to get away from you, when you disregarded a Policeman's signal to stop the vehicle.
   

[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 tariff for rape of an adult is well settled since the Judgment of Hon. Mr. Justice A.H.C.T. Gates (as he was then) in State v Marawa [2004] FJHC 338. The starting point of imprisonment for rape of an adult is 7 years. The tariff is between 7 years to 15 years.

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

"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."

[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, in the light of the above guiding principles, I commence your sentence at 9 years of imprisonment for the charge of Rape.

[10] The aggravating factors are:

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

(ii) Victim is of relatively young age;

(iii) The age gap between two of you;

(iv) Significant degree of opportunistic planning;

(iv) Use of alcohol on victim to facilitate the offence;

(vi) Taking advantage of the victim's vulnerability;

(vii) Display of total disregard to the victim's wellbeing as she continue to suffer from her psychological trauma.

[11] I add 4 years for the above aggravating factors. Now your sentence is 13 years.

[12] The mitigating factors are:

(i) You are a first offender as conceded by the State;
(ii) You are a 44 year old security officer;
(iii) You support your 21 year old unemployed son;
(iv) You are married but you wife lives in separation, since this incident;
(v) You are from a disadvantaged social background;
(vi) You had limited opportunity for education;
(vii) Your previous good character;
(viii) No significant injury on victim;
(ix) No weapon was used on the victim;
(x) One incident and no repetition.

[13] I deduct 2 years and 6 months for the above mitigating factors. Now the sentence is 10 years and six months.

[14] The fact that you were treated for mental illness at some distant point of time cannot be considered as a mitigating factor as the medical report you rely on reveals that you do "not need antipsychotic medications at this time" since you do not present serious symptoms of any mental illness. The report further reveals that since 1999, there is no record of the fact that you were being treated for any illness by St Giles Hospital. You did not submit that the commission of this offence is linked to your illness. It is clear from the report that you were "well aware" of your actions during the time of the commission of the offence.

[15] You were in remand for this case for six months(according to DPP its 5 months), and were on bail before and during the trial.

[16] I deduct your six month long remand period from the sentence and now the sentence is 10 years.

[17] Considering Section 18 (1) of the Sentencing and Penalties Decree, I impose 9 years of non- parole period.

[18] Your sentence is as follows:

(i) Count of Rape - 10 years of imprisonment

Summary

[19] You are sentenced to 10years imprisonment. You will not be eligible for parole until you complete serving 9 years of imprisonment.

[20] 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.