State v Koroivosa - Sentence [2015] FJHC 997; HAC215.2014 (11 December 2015)

IN THE HIGH COURT
OF SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 215 OF 2014

STATE

vs

TOMASI KOROIVOSA

Counsel: Mr Y Prasad and Ms S Serukai for the State
Ms S Prakash for the Accused

Date of Trial : 8/12/2015 & 9/12/2015
Summing Up : 9/12/2015
Judgment : 10/12/2015
Sentence : 11/12/2015

SENTENCE

[1] Mr. Tomasi Koroivosa, after being convicted to the charge of Rape, contrary to Section 207(1),(2)(a) and (3) 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 the above charge. The ensuing trial lasted for two 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 complainant in this case was about 12 years of age at the time of the incident. You were considered by the complainant as his first cousin;

(ii) On 7th June 2014, under the pretext of giving him a story book, you invited the complainant to come to your house;

(iii) You have then asked the complainant to lie down on bed face down and inserted your penis into his anus. You threatened him with punching and told not to shout. You continued for about 5 minutes with the act, thereafter you went to play volleyball.

(iv) At a later point of time, you offered traditional reconciliation to the complainant's family.

[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 complainant is a child at the time of offending. It is now well settled, and confirmed by the Supreme Court in Raj v State [2014] FJSC 12 that the tariff for Rape of a child is 10-15 years imprisonment.

[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:

"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."

[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 10 years of imprisonment for the charge of Rape.

[10] The aggravating factors are:

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

(ii) The age gap between two of you;

(iii) Significant degree of opportunistic planning;

(iv) Use of threats to subdue the complainant;

(v) Taking advantage of the victim's vulnerability;
(vi) Display of total disregard to the victim's wellbeing.

[11] I add 4 years for the above aggravating factors. Now your sentence is 14 years.

[12] The mitigating factors are:

(i) You are a first offender as conceded by the State;
(ii) You are Form 7 student at a High school;
(iii) You are 19 year old;
(iv) Your previous good character;
(v) No weapon was used on the victim;
(vi) One incident and no repetition;
(vii) Cooperation with the investigative authorities;
(viii) Victim Impact Statement does not reveal any continuing traumatic psychological effects.

[13] I deduct 4 years for the above mitigating factors. Now the sentence is 10 years.

[14] You were in remand for this case for one day pending judgment of Court and were on bail before and during the trial.

[15] Considering Section 18 (1) of the Sentencing and Penalties Decree, I impose 8 years of non- parole period.

[16] Your sentence is as follows:

(i) Count of Rape - 10 years of imprisonment

Summary

[17] You are sentenced to 10 years imprisonment. You will not be eligible for parole until you complete serving 8 years of imprisonment.

[18] 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.