State v Verebasaga [2016] FJHC 225; HAC028.2014LAB (1 April 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 028 OF 2014LAB
STATE

V

MOSESE VEREBASAGA

Counsels : Ms. A. Vavadakua for State
Mr. A. Paka for Accused
Hearings : 29th, 30th& 31st March, 2016
Summing Up : 01 April, 2016
Judgment : 01 April, 2016
Sentence : 01 April, 2016

SENTENCE

[1] Mr. MOSESE VEREBASAGA, after being convicted to a charge of Rape, contrary to Section 207(1), (2)(a) 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 for three days in this Court; during which, the victim and three 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 majority 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 35 years of age at the time of the incident. You were considered by the victim as his relation’s husband;
(ii) On the day of the incident you have tied the complainant’s hands to a Vutu tree, ignoring his pleas not to. You then removed his pants, applied saliva to his anus before you penetrated with your penis.

[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 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, and in the light of the above guiding principles, I commence your sentence at 8 years of imprisonment for the charge of Rape.

[10] The aggravating factors are:

(i) Breach of trust the victim had towards you;
(ii) You took advantage of the victim’s mental and physical vulnerability;
(iii) Significant degree of opportunistic planning;
(iv) The victim was traumatised by tying his hands to a tree ignoring his please, not to.

[11] I add 4 years for the above aggravating factors. Now your sentence is 12 years.

[12] The mitigating factors are:

(i) You are a first offender as conceded by the State;
(ii) You are a 45 year old farmer and sole bread winner of your family;
(iii) You support your family of 7 children;
(iv) Your parents are living and are over 70 years in age;
(v) You cooperated with the investigations;
(vi) Your previous good character;

[13] I deduct 2 years and 5 months for the above mitigating factors. Now the sentence is 9 years and 7 months.

[14] You were in remand for this case for1 year and 7 months.

[15] I deduct your 1 year and 7 months long remand period from the sentence and now the sentence is 8 years.

[16] Considering Section 18 (1) of the Sentencing and Penalties Decree, I impose 7 yearsof non- parole period.

[17] Your sentence is as follows:

Count of Rape –8 years of imprisonment

Summary

[18] You are sentenced to 8 years of imprisonment. You will not be eligible for parole until you complete serving 7 years of imprisonment.

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

ACHALA WENGAPPULI
JUDGE

At Labasa
01 April, 2016

Solicitor for the State : Office of the Director of Public Prosecution, Labasa
Solicitor for the Accused : Office of the Legal Aid Commission, Labasa