State v Natuitagalua - Sentence [2016] FJHC 939; HAC111.2012 (17 October 2016)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA
CRIMINAL CASE: HAC 111 OF 2012

STATE
v

APISAI NATUITAGALUA

Counsel : Mr A. Singh for State
Ms L. Tabuakuro for the First Accused
Mr T. Ravuniwa for the Second Accused

Date of Hearing : 30^th August 2016 to 31^st August 2016
1^st September 2016 to 5^th September 2016
15^th September 2016 to 23^rd September 2016
Date of Closing Submissions : 26^th September 2016
Date of Summing Up : 3^rd October 2016
Date of Judgment : 7^th October 2016
Date of Sentence : 17^th October 2016

SENTENCE

1. Mr. Apisai Natuitagalua, you have been found guilty and convicted by this court for two counts of Rape, contrary to Section 207(1) and (2) (a) of Crimes Decree, which carries a maximum penalty of imprisonment of life, and one count of Assault with Intent to Commit Rape, contrary to Section 209 of the Crimes Decree, which carries a maximum penalty of ten years of imprisonment.
2. It was proved at the conclusion of the hearing, that you consumed alcohol with the victim, the second accused and few others at the house of one Joji on the 25th of August 2012. After the drinking party, you, the second accused and one Sitiveni went to the Nawaka River to drink more beer. On your way to Nawaka River you found the victim was standing beside the main road, waiting for her transport. You went to her and forced her to come with you. While all of you were drinking beer under a mango tree at the river bank, you pulled the victim and dragged her to nearby bush close to a cassava patch. You then forcefully removed her cloths. You punched on her chest. She got injured while she was dragged to that place. You then forcefully inserted your penis into her vagina and had sexual intercourse without her consent. Subsequently, you came back to the mango tree and continue to drink. Sitiveni went to the victim and brought her back to the mango tree. When the drinks finished, second accused and Sitiveni went back to their houses. You forcefully dragged the victim with you and took her to another place, where you forced her to lie down. You then strangled her neck, threatening her to be quite. You then forcefully inserted your penis into her vagina without her consent and had sexual intercourse. The victim was seventeen years old at the time of this alleged incident took place.
3. Rape is a crime that has no place of acceptance in any civilised society. It is a worse form of physical and psychological infringement of a person’s life. It is not only an attack on oneself, but also an attack on acceptable values and norms of our society. The impact of such crimes, could adversely change the life of the victim and all of her family forever. The prevalence nature of the occurrence of such crimes, specially targeting juvenile and young adolescence has become a social menace in our society.
4. Having considered Section 4(1) of the Sentencing and Penalties Decree and the serious nature of this offence, it is my opinion that the purpose of this sentence must be founded on the principle of deterrence and protection of the community. Offenders of this nature must be punished with severity in order to demonstrate that the court of law has no tolerance or sympathy for such offenders.
5. Hon. Chief Justice Gates in Anand Abhay Raj vs State [2014] FJSC 12; CAV0003.2014 (20 August 2014)) held that the tariff for rape of a child is between 10 -16 years’ imprisonment period.
6. The tariff for the offence of Assault with Intent to Commit Rape is 1 to 4 years (Justice De Silva in Jone Tabaka, Criminal Case Appeal No 5 of 2013).
7. The victim states in the Victim Impact Report filed by the prosecution that this crime adversely effected in her life both psychologically and physically. You have employed substantial physical force on her. You have punched the victim on her chest. The victim has suffered lacerations and abrasions around her abdominal area and upper thighs. Having considered the serious nature of this crime and the level of harm and culpability of the offending, I select thirteen (13) years as the starting point for each of the two counts of rape. I select three (3) years for the count of Assault with Intent to Commit Rape.
8. It was proved at the conclusion of the hearing, that you took advantage of the vulnerability of the victim to satisfy your sexual gratification. She was at a place where she has never been before and was drunk as she had been drinking since the previous night. You forced her to come with you to the river bank, while she was waiting beside the main road for her transportation. Hence, I find this is an opportunistic crime. I consider these facts as aggravating circumstance of these offences.
9. You are a Fifty Three (53) years old farmer. You are married. You have two children from your previous marriage. However, your family and personal background has less mitigatory value in offences of this nature.
10. You are not a first offender. You have been adversely recorded with sixteen previous convictions. However, the last recorded previous conviction of you was in 2008. Since, then you have been maintained a crime free record until you were found guilty for this offence committed on 2012. Hence, it is my opinion that you are entitled for a discount for your character.
11. Having considered the above discussed aggravating factors, I increased two (02) years, reaching to an interim imprisonment of fifteen (15) years for each of the two counts of rape.
12. In respect of the count of Assault with Intent to Commit Rape, I increase one (01) year to reach four (04) years of interim imprisonment period.
13. Having considered you crime free character since 2008, I reduce one (01) years, making your final sentence as fourteen (14) years of imprisonment period.
14. In respect of the offence of Assault with Intent to Commit Rape, I reduce one (01) year, making the final sentence of three (3) years imprisonment period.
15. You had been in remand custody for a period of six (06) months prior to this sentence. I accordingly, reduce further six (06) months for the period you spent in remand custody pursuant to Section 24 of the Sentencing and Penalties Decree. You actually sentence is now thirteen (13) years and six (06) months imprisonment period for each of the two counts of Rape. Your final sentence for the offence of Assault with Intent to Commit Rape is two (02) years and six (06) months imprisonment period.
16. Having considered the seriousness of the offence and possibilities of rehabilitation, it is my opinion that a period of twelve (12) years of non-parole period would serve the purpose of this sentence.
17. I accordingly sentence you as follows,
    1. Thirteen (13) years and Six (06) months of imprisonment for the first count of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Decree,
    2. Thirteen (13) years and Six (06) months of imprisonment for the third count of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Decree,
    3. Two (2) years and Six (06) months imprisonment period for the offence of Assault with Intent to Commit Rape Contrary to Section 209 of the Crimes Decree.
18. All three sentences to be served concurrently. Accordingly, you have to serve Thirteen (13) years and Six (06) months imprisonment period.
19. Moreover, you are not eligible for any parole for a period of twelve (12) years pursuant to Section 18 (1) of the Sentencing and Penalties Decree.
20. Thirty (30) days for appeal to the Fiji Court of Appeal.
    

R. D. R. Thushara Rajasinghe

Judge

Solicitors : Office of the Director of Public Prosecutions

Messrs K Law for the First Accused person

Messrs MIQ Lawyers for the Second Accused person