IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 158 OF 2012

STATE

V

1. NACANI DOMO
2. DAMASINO LEVI

Counsel : Mr. S. Nath for the State
Mr. R. Kumar and Ms. Diroiroi for the Accused 

Date of Judgment: 11th September, 2015
Date of Sentence: 7th October,2015 

Sentence
 
[1] On the 11th of September, 2015, the Accused were found guilty after trial and each Accused was convicted by this Court of two counts of penile Rape. The Accused now come before this Court for sentence on conviction.

[2] The facts of the case were that:

Complainant, a twenty year old mother, was returning home after a traditional Fijian ceremony called Tevutevu held at one of her close relative’s house. The Accused who were also participants at the same ceremony, on their way home, find the Complainant having sexual intercourse with young boys by the road side under a guava tree. When five boys have already finished, the Accused also join in the group in the belief that they were having consensual sexual intercourse with the Complainant. 1st Accused takes his turn, sucks Complainant’s breasts, licks her vagina and inserts his penis into her vagina. Complainant was weak and unable to react. Her repeated calls for stoppage fall on deaf ears. She surrenders herself to the invasion. After the 1st Accused is done, the 2ndAccused follows the suite. After a short while, both the Accused repeat the same acts, this time, under a bamboo tree. Both the Accused admit having had sexual intercourse with the Complainant on two occasions; but with her consent.

[3] “Tevu”, in Fijian, literally means to “spread”. The “Tevutevu”, or “Spreading of the mats” is an ancient Fijian tradition carried out at weddings. The families of the bride and groom come together carrying mats, mosquito nets etc. in a ceremony that symbolizes the “giving away” of the bride, to the groom’s family, and the beginning of a new family group. Ceremony is filled with grog and music, and sanctity of marriage still attached to it. Complainant and the Accused are all gathered in celebration to wish the new couple a happy married life. Nowhere in a Tevutevua notion requiring a woman attending the ceremony to compromise her sexual autonomy and satisfy male participant’s lust for sex. The Accused have been opportunistic when they committed this crime to a mother in an uncivilised manner believing they are entitled to do so. They have not only raped the Complainant, but also the rich cultural heritage they themselves had gathered to celebrate.

[4] There is no Victim Impact Report before this Court filed by the State. Scientific studies on rape victims have produced dramatic confirmation of the mental health impact of rape. The first mental health problem examined was posttraumatic stress disorder (PTSD), an extremely debilitating disorder occurring after a highly disturbing traumatic event, such as military combat or violent crime. The other mental health problem discovered in raped women was major depressive episode in their lifetimes. 30% of rape victims had experienced at least one major depressive episode in their lifetimes. Rape victims were three times more likely than non-victims of crime to have ever had a major depressive episode (Source: Dean G. Kilpatrick, Ph.D. National Violence Against Women Prevention Research Center, Medical University of South Carolina https://mainweb-v.musc.edu/vawprevention/research/mentalimpact.shtml) Complainant, giving evidence, demonstrated to Court the way she was coping after the horrendous ordeal.

[5] The maximum penalty for Rape is life imprisonment. 

[6] It is now well settled that minimum sentence of seven years must be imposed on an adult convict in a rape case where the victim is an adult.

The Court of Appeal in Kasim v State [1994] FJCA 25; Aau0021j.93s (27 May 1994) it was held that:

"While it is undoubted that the gravity of rape cases will differ widely depending on all the circumstances, we think the time has come for this Court to give a clear guidance to the Courts in Fiji generally on this matter. We consider that in 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".

[7] In State v ManoaNairogorogo et al. HAC 14 of 2013 (25th September, 2015) Justice Madigan has recently laid down a new sentencing guide line to be applied in gang rape cases in following terms:

"Whilst the normal range of sentences for rape is 7-15 years (Kasim), the range for a gang rape, where all perpetrators are acting in agreement, should be increased by making the lower starting point of the range to be a term of nine years. Any additional aggravating factors particular case being sentenced will of course be added to that point.

[8] I am not inclined to consider this case to be one of' gang rape' case. Although eight people, including the Accused, had admittedly had sexual intercourse with the Complainant, there was no evidence available at the trial stage to conclude that the Accused were acting in agreement with the 'boys' who were already having sexual intercourse with the Complainant. The Accused entered the scene accidently when the 'boys' were already engaged in the act. It is not clear whether the 'other boys' were also charged with rape. There is no specific legal interpretation to the term 'gang'. In my opinion, at least three people must participate to form a gang. In these circumstances, I prefer the sentencing guideline laid down in Kasm(supra) to determine the minimum prison term. 

[9] Both the Accused are in their thirties and are in de factor relationships. According to the submission of the Defence Counsel, Mr. Nacani Demo is a father of two children and the sole breadwinner of the family. He looks after his elderly mother and his disabled sister. Mr. Damasino Levi's family background is no different. He is a bulk boy and looks after his elderly parents. 

[10] Degree of culpability for both the Accused is the same. Aggravating and mitigating circumstances appear to be the same. So I take a common approach in determining the sentence for both the Accused.

Mitigating Factors 

[11] Both the Accused are the first offenders and have maintained clear records hitherto and are young. They have co-operated with the Police during investigations.

Aggravating Factors 

[12] The Accused took the advantage of the naivety and vulnerability of the Complainant when she was alone on her way home at night time. 

[13] The Accused watched a group of young boys having sex with the Complainant and had no compassion when they themselves joined the group immediately afterwards to further torturea woman already weakened by repeated sexual invasion. 

Sentence

[14] Having considered all the aspects, now I proceed to sentence the Accused as follows;

[15] To reflect the gravity of offending, I take a starting point of 07 years at the bottom of the tariff for each count. To reflect the aggravating features, I add three years to that starting point bringing the interim sentence to ten years. In recognition of their strong mitigation of clean record, I deduct two years bringing the final sentence to eight years. 

[16] Having considered the Accused's future prospects and desire for rehabilitation, I order that each Accused serve only five years before they are eligible for parole. 

[17] Having considered the "one transaction rule" and "totality principle" I order the sentences to be served concurrently. 

Summary

[18] Each Accused is convicted for eight years imprisonment for each count, to be served concurrently. They will serve a minimum of five (5) years before being eligible for parole.

[19] 30 days to appeal to the Court of Appeal 

ArunaAluthge
Judge

At Lautoka
7th October, 2015

Counsel:
- Office of the Director of Public Prosecution for State
- Office of the Legal Aid Commission for Accused