State v Raitekiteki - Sentence [2016] FJHC 1105; HAC285.2015 (7 December 2016)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 285 of 2015

[CRIMINAL JURISDICTION]

STATE

V

MENI RAITEKITEKI

Counsel : Ms. K. Semisi, Ms. Tivao and Ms. S. Sharma for State

Ms. T. Kean and Mr. R. Goundar for Accused

Dates of Hearing : 17^th – 22^nd November 2016
Date of Summing up: 25^th November 2016
Date of Judgment : 28^th November 2016
Date of Sentence : 07^th December 2016
(The name of the complainant is suppressed. Accordingly, the complainant will be referred to as PW)

SENTENCE

1. Meni Raitekiteki, you were charged with the following offences;
   

FIRST COUNT

Statement of Offence

AGGRAVATED ROBBERY: contrary to section 311(1) (b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

MENI RAITEKITEKI on the 18^th day of August 2015 at Nepani, Nasinu in the Central Division, being armed with an offensive weapon, namely a dagger, stole cash in the sum of approximately $1700.00, assorted jewelries valued at $2000.00, 1 Alcatel mobile phone valued at $50.00, assorted liquor valued at $240.00, 1 Yess brand Note Pad valued at $165.00, 1 Floke model 112 multi meter valued at $1200.00, assorted biscuits valued at $10.00, all to the total value of $5365.00, the properties of PW, with the intention of permanently depriving PW of her properties and immediately before stealing, used force on PW.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

MENI RAITEKITEKI on the 18^th day of August 2015 at Nepani, Nasinu in the Central Division had carnal knowledge of PW, by penetrating her vagina with his penis without her consent.

THIRD COUNT

Statement of Offence

FALSE INFORMATION TO PUBLIC SERVANT: contrary to section 201(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

MENI RAITEKITEKI on the 18^th day of August 2015 at Nepani, Nasinu in the Central Division gave Detective Constable 4255 Binay Kumar, a person employed in the public service, a false name, intending to cause or knowing it to be likely that Detective Constable 4255 Binay Kumar will arrest Meni Raitekiteki if the true state of facts were known to him.

2. You stand convicted of the first and the second counts after trial and of the third count upon you guilty plea.
   
3. The brief facts are as follows. You went inside the 74-year-old victim’s house around midday on 18/08/15 when she was alone and watching TV. You were armed with a dagger. You punched the victim, dragged her on the floor and tied her hands with a belt. You then took two bottles of liquor, one Multimeter, assorted jewelries, cash and packets of biscuits, all to the value of around FJD 4900 that were under the possession and control of the victim. Then you made the victim lie down on two pillows you placed on the floor and you raped the victim whose hands were still tied with the belt. You then left the house with the property you took through the back door. You admitted that you gave a false name to the police when you were arrested. You were 20 years old when you committed the offences.
   
4. As a result of your punch to the victim’s face, her nasal bridge was broken. Due to the forceful penile penetration, the victim sustained a vaginal laceration which required to be surgically stitched. There was active bleeding from the victim’s vagina even at the time she was examined by the doctor. The doctor had also noted injuries on the victim’s wrists, on her back and a black eye.
   
5. The crime you have committed on the 74-year-old victim is monstrous and dreadful. There is an unwritten obligation on the younger generation to look after the elders in the society. But, you being a 20 year-old, chose an elderly lady to be your prey, to rob her and rape her.
   
6. The following convictions are noted in your previous conviction report;
   1. 25/01/13 Burglary and theft
   2. 08/03/13 Burglary and theft
   3. 11/04/13 Burglary and theft
   4. 15/07/14 Burglary and theft
   5. 30/07/15 Burglary and theft
      
7. In addition to the above, you were also convicted and sentenced on 03^rd November 2015 for two burglary counts and two theft counts in relation to two incidents.
   
8. Considering the aforementioned previous convictions, I am inclined to hold that you are a threat to the community. Therefore, I declare that you are a habitual offender in terms of section 11 of the Sentencing and Penalties Decree.
   
9. Though you are a young offender, the nature of the crime you committed in this case and the fact that this court has determined that you are a habitual offender given your previous convictions, compels this court to regard the protection of the community from you as the principle purpose of the sentence imposed in this case.
   
10. Section 17 of the Sentencing and Penalties Decree 2009 (“Sentencing and Penalties Decree”), reads thus;

“If an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences that does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each of them.”

11. The above provisions allows a sentencing court to impose an aggregate sentence considering the totality of the offending when sentencing an offender for more than one offence founded on the same facts or which forms a series of offences of the same or similar character. The two offences, aggravated robbery and rape you committed in this case are founded on the same facts. Therefore, in view of the provisions of section 17 of the Sentencing and Penalties Decree, I consider it appropriate to impose an aggregate sentence of imprisonment for the first and the second counts.
    
12. The maximum sentence for the offence of aggravated robbery contrary to section 311(1) of the Crimes Decree 2009 (“Crimes Decree”) is 20 years imprisonment. The tariff for this offence is an imprisonment term between 8 to 16 years. [Wallace Wise v The State, Criminal Appeal No. CAV 0004 of 2015; (24 April 2015)]
    
13. The maximum sentence for the offence of rape under section 207(1) of the Crimes Decree is imprisonment for life. It is settled that the sentencing tariff for rape of an adult victim is a term of imprisonment between 7 years and 15 years. (State v Naicker [2015] FJHC 537; HAC279.2013)
    
14. I consider the following as the aggravating factors relevant to the first count and the second count;
    1. The vulnerability of the elderly victim who was 74 years old;
    2. The nature and the magnitude of the force used (punching her causing her nasal bridge to be broken, dragging her on the floor and tying her hands with a belt);
    100. You raped the victim while her hands were tied together;
    4. Your forceful penile penetration caused the 74-year-old victim immense pain and she sustained a serious vaginal injury.
       
15. Your counsel submitted that you are a young offender and that you have cooperated with the police as your mitigating factors. Though you are a young offender you are not a first offender. As I have explained above, this court should regard the protection of the community as the primary objective of sentencing you in this case though you are a young offender. You have admitted giving a false name to the police and therefore I cannot agree with your counsel’s submission that you cooperated with the police. I do not find any mitigating factors in this case.
    
16. I select 10 years as the starting point of your aggregate sentence for the first and the second counts. Considering the aforementioned aggravating factors, I increase your sentence to 18 years imprisonment. Since there are no mitigating factors, your aggregate sentence for the first and the second counts shall be 18 years imprisonment.
    
17. The offence of giving false information to a public servant contrary to section 201 of the Crimes Decree carries a maximum sentence of 5 years.
    
18. You gave a false name to the police to avoid being identified by the police given your previous record. However, you pleaded guilty to the third count when the Information was first read to you. Considering all the circumstances I sentence you for a term of 6 months imprisonment for the third count. You shall serve this term of 6 months concurrently with the aggregate term of imprisonment imposed on you for the first and the second counts.
    
19. Accordingly, your final sentence is 18 years imprisonment. I order that you are not eligible to be released on parole until you serve 15 years of your sentence pursuant to the provisions of section 18 of the Sentencing and Penalties Decree.
    
20. Section 24 of the Sentencing and the Penalties Decree reads thus;

“If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court otherwise orders, be regarded by the court as a period of imprisonment already served by the offender.”

21. I note that you have spent 11 months and 19 days in custody in relation to this case after deducting the period you were a serving prisoner. The period you were in custody shall be regarded as a period of imprisonment already served by you in view of the provisions of section 24 of the Sentencing and Penalties Decree. I hold that the period that should be regarded as served is one year.
22. In the result, you are sentenced to 18 years imprisonment with a non-parole period of 15 years. Considering the time spent in custody, the time remaining to be served is as follows;

Head Sentence – 17 years

Non-parole period – 14 years

23. 30 days to appeal to the Court of Appeal.
    

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Legal Aid Commission, Suva.