State v Turagaca - Sentence [2020] FJHC 756; HAC14.2020 (17 September 2020)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No: HAC 14 of 2020

STATE

V

EPI SOGA TURAGACA

Counsel : Mr. A. Singh for the State.

: Ms. S. Ali [LAC] for the Accused.

Date of Submissions : 16 September, 2020
Date of Sentence : 17 September, 2020

SENTENCE

(The name of the victim is suppressed, she will be referred to as “LH”)

1. The accused is charged with the following offence as per the information filed by the Director of Public Prosecutions dated 7^th February, 2020:

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Act 2009.

Particulars of Offence

EPI SOGA TURAGACA on the 12^th day of December, 2019 at Lautoka in the Western Division, penetrated the vagina of “LH”, with his fingers, without her consent.

2. On 18^th June 2020 the accused in the presence of his counsel pleaded guilty to the charge. Thereafter on 20^th August, 2020 the accused admitted the summary of facts read by the state counsel.
   
3. After considering the summary of facts admitted by the accused this court is satisfied that the accused had entered an unequivocal plea of guilty on his own freewill after understanding the nature of the charge and the consequences of pleading guilty. The summary of facts also satisfies all the elements of the offence the accused is charged with.
   
4. In view of the above, this court finds the accused guilty of one count of rape as charged and convicts him accordingly.
   

5. The brief facts were as follows:

1. The victim a New Zealand citizen (51 years of age) came to Fiji with her husband for their holidays. On 7^th December, 2019 the victim and her husband checked in at a resort in the Yasawa Islands.
   
2. On 12^th December, the victim and her husband returned to their bure after having dinner at around 1am. Before going to bed the victim’s husband did not lock the room door.
   

100. Whilst asleep, the victim felt someone’s finger inside her vagina she saw her husband was fast asleep. At this point the victim realised that it was not her husband who was touching her but someone else.
     

4. The victim rolled over and grabbed the accused face and also pulled his shirt, but he was able to free himself and escape. The resort staff was alerted, however, the perpetrator was nowhere to be found. Upon reaching their room the victim discovered shirt buttons.
   

e) The manager of the resort was alerted and an investigation was carried out, a meeting was convened the accused brought a different shirt and upon checking the camera it was discovered that the accused was wearing a different shirt.

f) After a search was conducted in the resort premises the staff were able to find the shirt worn by the accused hidden inside the male staff quarters washroom in between the double walls. The shirt was blue in colour which had the name of the accused written on it. It was noted that the shirt had 4 buttons missing.

g) The accused was arrested, taken in for questioning and charged.

6. Both counsel filed written sentence and mitigation submission for which this court is grateful.

7. Counsel of the accused presented the following personal details and mitigation on behalf of the accused:

a) The accused is a first offender (last previous conviction in 2005);

b) Pleaded guilty at the earliest opportunity;

c) Remorseful of his actions;

d) He was 36 years of age at the time of the offending;

e) Married with 2 daughters (11 years and 1 year);

f) Sole bread winner of the family;

g) Seeks forgiveness of the court and promises not to reoffend;

h) Wishes to live a respectful life;

i) Seeks the leniency of the court;

j) Did not use physical or aggressive force;

k) Cooperated with the police.

8. I accept in accordance with the Supreme Court decision in Anand Abhay Raj vs. The State, CAV 0003 of 2014 that the personal circumstances and family background of an accused has little mitigatory value in cases of sexual nature.

AGGRAVATING FACTORS

a) Breach of Trust

The victim was a Tourist and a guest at the resort where the accused was employed. The accused was expected to exercise a sense of responsibility and protection towards the guest of the resort. The accused grossly breached the trust of the victim by his action in entering her bure and doing what he did to her.

b) Victim was asleep.

The victim was asleep in her bure and she had never expected such an incident to occur and more so by an employee of the resort. What was supposed to be a time for peaceful sleep was disturbed by the unlawful intrusion of the accused. The victim was vulnerable and not expecting anyone to disturb her sleep in the comfort of her room where she was to be safe. The accused was bold and undeterred.

TARIFF

9. The maximum penalty for the offence of rape is life imprisonment and the accepted tariff for the rape of an adult is a sentence between 7 years to 15 years imprisonment.

10. In Mohammed Kasim v The State (unreported) Cr. Case No. 14 of 1993; 27 May 1994, the Court of Appeal had stated:

“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 the starting point.”

11. It is the duty of the court to protect victims of sexual violations that is the reason why the law makers have imposed life imprisonment for the offence of rape as the maximum penalty.
    
12. Bearing in mind the objective seriousness of the offence committed I take 7 years imprisonment (lower end of the tariff) as the starting point of the sentence. I add 6 years for the aggravating factors, bringing an interim total of 13 years imprisonment. The accused comes to this court with a clean record and good character. For good character and the mitigation the sentence is reduced by 1 year. The sentence is now 12 years imprisonment.
    
13. The accused pleaded guilty at the earliest opportunity. In Gordon Aitcheson vs. The State, Criminal Petition No. CAV 0012 of 2018 (2 November, 2018) the Supreme Court has offered the following guidance at paragraphs 14 and 15 in regards to the weight of a guilty plea as follows:

In Rainima –v- The State [2015] FJCA 17; AAU 22 of 2012 (27 February 2015) Madigan JA observed:

“Discount for a plea of guilty should be the last component of a sentence after additions and deductions are made for aggravating and mitigating circumstances respectively. It has always been accepted (though not by authoritative judgment) that the “high water mark” of discount is one third for a plea willingly made at the earliest opportunity. This court now adopts that principle to be valid and to be applied in all future proceeding at first instance.”

In Mataunitoga –v- The State [2015] FJCA 70; AAU125 of 2013 (28^th May 2015) Goundar JA adopted a similar but more flexible approach to this issue:

“In considering the weight of a guilty plea, sentencing courts are encouraged to give a separate consideration and qualification to the guilty plea (as a matter of practice and not principle) and assess the effect of the plea on the accused by taking into account all the relevant matters such as remorse, witness vulnerability and utilitarian value. The timing of the plea, of course, will play an important role when making that assessment.”

[15] The principle in Rainima must be considered with more flexibility as Mataunitoga indicates. The overall gravity of the offence, and the need for the hardening of hearts for prevalence, may shorten the discount to be given. A careful appraisal of all factors as Goundar J has cautioned is the correct approach. The one third discount approach may apply in less serious cases. In cases of abhorrence, or of many aggravating factors the discount must reduce, and in the worst cases shorten considerably.
14. This court accepts that genuine remorse leading to a guilty plea is a substantive mitigating factor in favour of an accused, however, the guilty plea must be entered in the true spirit of remorse since genuine remorse can reduce the harshness in the final sentence (see Manoj Khera v The State, CAV 0003 of 2016 (1 April, 2016).

15. This court accepts the accused has shown some remorse when he pleaded guilty but not genuine remorse. Genuine remorse is about genuinely feeling sorry for what a person has done, accepting guilt because of strong evidence and proof of the offender’s deeds and then pleading guilty is not genuine remorse per se.
    
16. A guilty plea is part of that process but the sentencing court then has the responsibility to assess the guilty plea along with other pertinent factors such as the timing of the plea, the strength of the prosecution case etc. before arriving at a conclusion. In this instance the prosecution had a strong case against the accused which is why there is doubt about the genuineness of the guilty plea.
    
17. However, since the allegation is of a sexual nature, the accused by pleading guilty has not only saved the court’s time but also prevented the victim from reliving her experience in court. In this regard the accused ought to receive some reduction in his sentence. The sentence is reduced by further 1 ½ years, the interim sentence is now 10 years and 6 months imprisonment.
    
18. I note the accused has been in remand for 9 months in accordance with section 24 of the Sentencing and Penalties Act I deduct 9 months as a period of imprisonment already served.
    

19. The final sentence is now 9 years and 9 months imprisonment.

20. Having considered section 4 (1) of the Sentencing and Penalties Act and the serious nature of the offence committed on the victim compels me to state that the purpose of this sentence is to punish offenders to an extent and in a manner which is just in all the circumstances of the case and to deter offenders and other persons from committing offences of the same or similar nature.

21. Under section 18 (1) of the Sentencing and Penalties Act, I impose 8 years as a non-parole period to be served before the accused is eligible for parole. I consider this non-parole period to be appropriate in the rehabilitation of the accused and also meet the expectations of the community which is just in the circumstances of this case.

22. Mr. Turagaca you have committed a serious offence against the victim who was a visitor to our shores what was expected to be a happy holiday by the victim was spoilt by you for your selfish reasons. You were part of the hospitality and tourism industry and such a behaviour does not give a good name to Fiji and its people. Any amount of negative publicity involving tourists affects the tourism industry which should not be taken lightly.
    
23. Your actions towards the victim cannot be forgiven you were so bold that you entered her room without a second thought.
    

24. This court will be failing in its duty if a long term deterrent custodial sentence is not imposed.

25. In summary I pass sentence of 9 years and 9 months imprisonment for one count of rape with a non-parole period of 8 years to be served before the accused is eligible for parole.
    

26. 30 days to appeal to the Court of Appeal.

Sunil Sharma
Judge

Solicitors
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for both the Accused persons.