State v Vasu - Sentence [2016] FJHC 704; HAC172.2015 (5 August 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 172 OF 2015

STATE

vs

LORIMA VASU

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

Ms L. Raisua and Mr L. Qetaki for the Accused

Dates of Trial : 25^th; 26^th; and 27^th July 2016

Summing Up : 29^th July 2016

Judgment : 1^st August 2016

Sentence : 5^th August 2016

SENTENCE
___________________________________________________________________________

[1] Mr. LORIMA VASU, after being convicted on counts of Rape and Indecent Assault, contrary to Sections 207(1),(2)(a) and 212(1) 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 charges. The ensuing trial lasted for three days in this Court; during which, the complainant, Nacanieli Liti and Dr. Violetta Fatiaki have given evidence for the prosecution while you offered evidence in support of your denial and called Samuela Rinavuaka and Epeli Ruivadra to give evidence on your behalf.

[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 charges.

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

(i) The complainant lived in the village of Natayeva. You are also from the same village and the complainant regarded you as a brother. On the evening of 15^thApril 2015, at about 7.00 pm to 8.00 pm she was tasked by her father to look for her younger brother. She went in search of her brother.

(ii) The complainant had then met you on a foot path. You invited her to a nearby empty shop. She declined your invitation at first but later she followed you into the empty shop, when you repeated your invitation for the second time. She thought you are going to tell her stories.

(iii) Once inside the empty shop, you touched her breasts and also touched inside of her vagina by using a finger. Her attempt to go away was prevented by you. After about 10 minutes she was allowed to go. When both of you came out of the empty shop, you were seen by the witness Nacanieli Liti (referred to by the complainant as "Naca"), who conveyed what he saw to her father. The complainant was then assaulted with a stick by Naca, upon her father’s approval.

[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 14 years of age at the time of the rape and therefore, is a juvenile. The tariff for rape of a juvenile 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 juvenile 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. 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 11 years of imprisonment for the count of Rape.

[10] The aggravating factors are:

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

(ii) Significant degree of opportunistic planning;

(iii) Taking advantage of the victim's vulnerability;

(iv) Display of total disregard to the victim's wellbeing;

(v) 13 year age gap between you and the complainant.

[12] I add 3 years on your sentence for above aggravating factors. Now your sentence is 14 years.

[13] The mitigating factors are:

(i) You are a first offender;
(ii) You are a 28 year old employee of a Company and earns $200 a week;
(iii) You are not married and support your widowed mother and two other siblings as the sole breadwinner of the family.

[14] I deduct 2 years from your sentence for the above mitigating factors. Now the sentence is 12 years.

[15] According to Section 212 (1) of the Crimes Decree No. 44 of 2009, the maximum punishment for Indecent Assault is imprisonment for a period of 5 years.

[16] Sentencing Tariff for the offence of Indecent Assault is 12 months imprisonment to 4 years. In Rokota v State [2002] FJHC 168, Shameem J observed thus:

"Sentences for indecent assault range from 12 months imprisonment to 4 years. The gravity of the offence will determine the starting point for the sentence. The indecent assault of small children reflects on the gravity of the offence. The nature of the assault, whether it was penetrative, whether gratuitous violence was used, whether weapons or other implements were used and the length of time over which the assaults were perpetrated, all reflect on the gravity of the offence. Mitigating factors might be the previous good character of the accused, honest attempts to effect apology and reparation to the victim, and a prompt plea of guilty which saves the victim the trauma of giving evidence.”

[17] In considering the nature of the offending, the aggravating and mitigating factors referred to above and the guidelines laid down in Rokota v. State (supra) I impose a 2 year term of imprisonment on the count of Indecent Assault.

[18] In applying totality principle in the light of the principles laid down by the apex Court in Vulawalu v State [2011] FJSC 6, I make further order that these two terms of imprisonment to run concurrently to each other.

[19] You were in remand for this case for a period of 10 weeks before and after trial.

[20] In view of the provisions contained in Section 24 of the Sentencing and Penalties Decree 2009, I deduct your 10 week long remand period from your sentence and now the sentence to serve is 11 years 09 months and 02 weeks.

[21] Considering Section 18 (1) of the Sentencing and Penalties Decree, I impose 8 years 09 months and 02 weeks of non-parole period in view of the judgement of Court of Appeal in Paula Tora v The State [2015] FJCA 20 and was endorsed by the Supreme Court in Paula Tora v The State [2015] FJSC 23.

Summary

[22] Your final sentence is therefore as follows:

(i) For the count of Rape – 11 years, 09 months and 02 weeks of imprisonment.
(ii) For the count of Indecent Assault – 02 years.
(iii) Both these sentences are to run concurrently.
(iv) Non-parole period - 8 years 09 months and 02 weeks.

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

ACHALA WENGAPPULI
JUDGE

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

Solicitor for the Accused : Legal Aid Commission, Suva.