State v Sawiri [2022] FJHC 110; HAC 226 of 2019 (11 March 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No. HAC 226 of 2019

STATE

V

PENI SAWIRI

Counsel : Mr. J. Nasa for the State.

Ms. P. Reddy for the Accused.

Date of Submissions : 11 March, 2022

Date of Sentence : 11 March, 2022

SENTENCE

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

1. The accused is charged with the following offence as per the information filed by the Director of Public Prosecutions dated 5^th March, 2020:
   

Statement of Offence

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

Particulars of Offence

PENI SAWIRI, on the 15^th day of December, 2019 at Nadi in the Western Division had carnal knowledge of “RD” without her consent.

2. This file was first called in the High Court on 30^th December, 2019. After the accused pleaded not guilty, the matter proceeded to pre-trial conference hearing and thereafter a date for voir dire hearing was assigned. On 21^st February, 2022 on the day of the voir dire hearing (after about 2 years and 2 months) the accused in the presence of his counsel pleaded guilty.
   
3. On 23^rd February, 2022, the accused admitted the amended summary of facts read by the state counsel. The summary of facts is as follows:
   

On 15^th December, 2019, between 9.30 pm to 9.45 pm, the victim went to the Mobil Service Station at Nasau Back Road, Nadi to buy something. Upon exiting the service station, the victim saw the accused on his bicycle talking to the attendants a few meters away from where she was standing.

After a while the victim decided to walk back home she crossed over from the Mobil Service Station to Nasau road and continued walking towards the bus stop. After walking a few meters away from the bus stop, the accused riding a bicycle went past her and whispered something. The victim could not make out what the accused had whispered.

As the victim walked past the wooden bridge she decided to urinate whilst in the process of pulling up her panty and tights, she got hooked by the neck from her right side. The accused then dragged the victim by her t-shirt to a drain then further dragged her through a cassava plantation and sugar cane field. The victim tried to escape, however, she was unsuccessful the accused grabbed the victim’s hair and continued to drag her close to the river.

The accused then pushed the victim on the ground and punched her face and head. When she shouted for help the accused grabbed her neck and told her he would kill her if she shouted for help. The accused then removed the victim’s tights and panty. After removing his pants the accused went on top of the victim and tried to insert his penis into her vagina. The victim tightened her legs, however, the accused forcefully inserted his penis into her vagina and had sexual intercourse without her consent.

After the accused left, the victim wore her clothes and ran home. The matter was reported to the police on the same night and she was taken to the Nadi Hospital for medical examination. The doctor noted bruises all over her face, swollen face, lips, scalp and her neck indicated blunt force trauma. There were no injures found around the virginal area but some vaginal discharge was noted.

The accused was arrested and interviewed under caution on the 16^th of December 2019. He admitted committing the offence in his caution interview from question and answer 32 to 67.

The accused also made admissions in his charge statement at question and answer 10.

(The medical report of the victim, caution interview and the charge statement of the accused were tendered in court).

4. After considering the amended summary of facts read by the state counsel which was admitted by the accused, and upon reading his caution interview and the charge statement this court is satisfied that the accused has entered an unequivocal plea of guilty on his freewill.
   

This court is also satisfied that the accused has fully understood the nature of the charge and the consequences of pleading guilty.

5. The amended summary of facts admitted by the accused satisfies all the elements of the offence of rape.
   
6. In view of the above, this court finds the accused guilty as charged and he is convicted accordingly.
   
7. Both counsel filed written sentence and mitigation submissions for which this court is grateful.
   
8. The accused counsel presented the following mitigation:
   
   1. The accused is a first offender;
      
   2. He is 29 years old;
      
   100. Does subsistence farming and also sells produce at the roadside;
        
   4. Is married with 4 children;
      
   5. Seeks forgiveness from the Honourable Court;
      
   6. Pleaded guilty;
      
   7. Cooperated with the police;
      
   8. Promises not to reoffend.
      
9. I accept in accordance with the Supreme Court decision in Anand Abhay Raj –vs.- The State, CAV 0003 of 2014 (20 August, 2014) that the personal circumstances of an accused person has little mitigatory value in cases of sexual nature.

AGGRAVATING FACTORS

10. The aggravating factors are:

(a) Victim was alone and vulnerable

The accused saw the victim at the service station and later he saw her walking alone on the road. It was night time and the accused took advantage of the situation the victim was unsuspecting and vulnerable.

(b) Use of violence

The accused used violence on the victim as reflected in the medical report to get the victim to surrender to him.

(c) Victim Impact Statement

In the victim impact statement the victim stated that her life changed after what the accused did to her. When she thinks of the incidents she feels uncomfortable and angry.

TARIFF

11. 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.
    
12. 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.”

GUILTY PLEA

13. The accused pleaded guilty about 2 years and 2 months after the matter was called in this court. In Gordon Aitcheson vs. The State, criminal petition no. CAV 0012 of 2018 (2 November, 2018) the Supreme Court offered the following guidance at paragraphs 14 and 15 in regards to the weight of a guilty plea as follows:
    

[14]. 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. In this case, this court does not accept that the accused has shown genuine remorse when he pleaded guilty on the day the voir dire hearing was about to begin. The date of allegation is 15^th December, 2019 and the accused did not plead guilty until 21^st February, 2022
        
16. 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. In this regard, the sentencing court has a 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. Here there is no doubt the timing of the guilty plea is late and that the prosecution had a strong case against the accused.
    
17. Nevertheless, by pleading guilty the accused saved the court’s time and expenses and also prevented the victim from reliving her experience in court. Bearing this in mind, the accused ought to receive some reduction for his guilty plea.
    
18. After assessing the objective seriousness of the offence committed I take 7 years imprisonment (lower range of the scale) as the starting point of the sentence. I increase the sentence for aggravating factors, the accused gets a reduction for mitigation and good character (although the personal circumstances and family background of the accused has little mitigatory value). The sentence is further reduced for guilty plea (although late in time), and for the remand period of 9 months and 29 days. The final sentence is 9 years imprisonment.
    
19. Mr. Sawiri you have committed a serious offence against the victim who was on her way home, unsuspecting and vulnerable. You cannot be forgiven for what you have done. You are a lustful man, for your sexual gratification you did not care about the victim you used violence on her to make her submit to you.
    
20. The victim has also been psychologically and emotionally affected, rape is terrible experience with a lifelong scar for the victim. A long term imprisonment term is inevitable for an offender who gets convicted for such an offence. Although you have pleaded guilty still it is shocking to note the manner in which the accused had committed this offence on the victim.
    
21. 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.
    
22. Under section 18 (1) of the Sentencing and Penalties Act (as amended), a non-parole period will be imposed to act as a deterrent to the others and for the protection of the community as well. On the other hand, this court cannot ignore the fact that the accused whilst being punished should be accorded every opportunity to undergo rehabilitation. A non-parole period too close to the final sentence will not be justified for this reason.
    
23. Considering the above, I impose 7 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.
    
24. In summary, I pass a sentence of 9 years imprisonment for one count of rape with a non-parole period of 7 years to be served before the accused is eligible for parole.
25. 30 days to appeal to the Court of Appeal.
    

Sunil Sharma
Judge

At Lautoka
11 March, 2022

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