State v Rupeti - Sentence [2017] FJHC 80; HAC101.2016 (8 February 2017)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 101 of 2016

[CRIMINAL JURISDICTION]

STATE

V

IANE RUPETI

Counsel : Ms. S. Tivao with Mr. E. Samisoni for State

Mr. M. Fesaitu with Mr. S. Luvena for Accused
Dates of Hearing : 31^st January – 03^rd February 2017
Date of Summing up: 03^rd February 2017
Date of Judgment : 06^th February 2017

Date of Sentence : 08^th February 2017
(The name of the complainant is suppressed. Accordingly, the complainant will be referred to as ES.)

SENTENCE

1. Iane Rupeti, you stand convicted of the following offences;
   

FIRST COUNT

Representative Counts

Statement of Offence

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

Particulars of Offence

IANE RUPETI between the 1^st day of June and 30^th day of December 2011 at Rotuma in the Eastern Division had carnal knowledge of ES without her consent.

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

IANE RUPETI on the 31^st day of December 2011, at Rotuma in the Eastern Division, had carnal knowledge of ES, without her consent.

THIRD COUNT

Representative Count

Statement of Offence

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

Particulars of Offence

IANE RUPETI between the 1^st January 2015 and 15^th May 2015 at Rotuma in the Eastern Division had carnal knowledge of ES, without her consent.

2. You and your wife were the guardians of the victim since she was 6 years old. In June 2011, your wife came to Fiji for the delivery of the second child leaving the victim under your care and protection. Thereafter, you approached the 13-year-old victim one night while she was asleep and then you raped her after you told her not to make a noise. You threatened her that the family bond will be over if she complains to anyone. After that first incident, you had raped her on several occasions in 2011 and then in 2015.
   
3. The age difference between you and the victim is 45 years. You were her father figure during the time you raped her. The victim looked up to you for her care and protection. You were in a position of authority and trust and you have abused that position. As the victim said in her evidence, you have ruined her life.
   
4. Pursuant to section 207(1) of the Crimes Decree 2009 (“Crimes Decree”) read with section 3(4) of the Sentencing and Penalties Decree 2009 (“Sentencing and Penalties Decree”), the maximum punishment for rape is life imprisonment. It is settled that the sentencing tariff for rape of a child victim is a term of imprisonment between 10 to 16 years (Anand Abhay Raj v State [2014] FJSC 12).
   
5. 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.”

6. The three offences you are convicted of forms a series of offences of the same character. Therefore, I consider it appropriate to apply the provisions of section 17 of the Sentencing and Penalties Decree to impose an aggregate sentence for the three rape counts.
   
7. I select 12 years imprisonment as the starting point of your aggregate sentence in respect of the three rape counts.
   
8. I consider the following as aggravating factors;
   1. you abused your position of authority and trust;
   2. the age gap between you and the victim which is 45 years; and
   100. you exploited the victim’s vulnerability.
        
9. You have no previous convictions. Your previous good character will be considered as a mitigating factor.
   
10. Your counsel highlighted the following as your personal circumstances;
    1. you are 64 years old and a farmer by profession; and
    2. you have 9 children.
11. Considering the aforementioned aggravating factors, your sentence is increased by 4 years and I deduct 2 years of your sentence considering your mitigating factor.
    
12. Accordingly, I sentence you to an aggregate sentence of 14 years imprisonment for the three counts of rape. I order that you are not eligible to be released on parole until you serve 11 years of your sentence in terms of section 18(1) of the Sentencing and Penalties Decree.
    
13. I note that you have spent around 2 months and 2 weeks in remand in connection with this case. I order that the time you spent in custody shall be regarded as a period of imprisonment already served by you in terms of the provisions of section 24 of the Sentencing and the Penalties Decree. I hold that the period to be considered as served should be 3 months.
    
14. In the result, you are sentenced to an imprisonment term of 14 years with a non-parole period of 11 years. Considering the time spent in custody, the time remaining to be served is as follows;

Head Sentence – 13 years and 09 months

Non-parole period – 10 years and 09 months

15. 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