State v Cumu - Sentence [2016] FJHC 1134; HAC305.2014 (15 December 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 305 OF 2014

STATE

vs

INOKE CUMU

Counsel : Ms M Chowdhury and Ms L Bogitini for the State
: Mr L Qetaki for the Accused

Dates of Trial : 28^th November – 7^th December 2016

Summing Up : 8^th December 2016

Judgment : 13^th December 2016

Sentence : 15^th December 2016

(Name of the complainant is permanently suppressed and will be referred to as A.B.)

SENTENCE

___________________________________________________________________________

[1] INOKE CUMU, after being convicted on the count of Rape contrary to Sections 207(1), (2)(b) 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 charge of Rape. The ensuing trial lasted for 8 days in this Court; during which, the complainant, her teacher Mrs. Bula and DC Esava, who interviewed you under caution, have given evidence for the prosecution while you addressed Court.

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

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

(i) The 8 year old complainant said after pulling her into your house, you pulled down her panties and licked her vagina. She was on her way back to her house after borrowing some matches from her grandmother. This happened in her village during the August 2014 school holidays.

(ii) You have threatened the complainant that if she revealed this incident you would kill her.

(iii) After the school holidays, the complainant had told of this incident to Mrs. Bula, her class teacher.

[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 was 8 years of age at the time of the Rape and therefore, is a child. The tariff for Rape of a child is confirmed in the Judgment of Chief Justice Gates in Raj v State [2014] FJSC 12. The starting point of imprisonment for Rape of a child is 10 years. The tariff is between 10 years to 16 years.

[7] In Mohammed Kasim v The State (unreported) 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, Goundar J, in Koroivuki v State [2013] FJCA 15 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."

[9] Considering the nature of offending, and in the light of the above guiding principles, I commence your sentence at 11 years of imprisonment for the count of Rape.

[10] The aggravating factors are:

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

(ii) Opportunistic planning;

(iii) The 14 years of age gap between you and the complainant;

(iv) The complainant had to relocate herself from her village due to this incident.

[11] I add 2 years on your sentence for above aggravating factors. Now your sentence is 13 years.

[12] The mitigating factors are:

(i) You are a first offender;
(ii) You co-operated with the Police during investigations.

[13] I deduct 1 year from your sentence for Rape on the above mitigating factors. Now the sentence is 12 years.

[14] You were not in remand for this case and were bailed out on the same day upon your production before the Magistrate Court.

[15] Considering Section 18 (1) of the Sentencing and Penalties Decree, I impose 9 years of non-parole period as per the judgment of Supreme Court in Tora v The State [2015] FJSC 23.

[16] Your final sentence is therefore as follows:

For the count of Rape – 12 years of imprisonment with a Non-parole period fixed at 9 years.

[17] You have 30 days to appeal to the Court of Appeal.

ACHALA WENGAPPULI
JUDGE

At Suva
This 15^th Day of December 2016

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

Solicitor for the Accused : Legal Aid Commission