State v Basecala [2011] FJMC 31; Criminal Case 1797 of 2008 (24 March 2011)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 1797 of 2008

DPP

v.

VENUSI BASECALA

For Prosecution: Ms. Tabuakuro. (DPP Office)
Accused: Mr. Sharma N. (Legal Aid)

SENTENCE

1. You VENUSI BASECALA are here today to be sentenced for one count of "Rape" an offence punishable under sec. 149 and 150 of the Penal Code.
   
2. Subsequent to a full trial this Court found you guilty as charged.
   
3. First of all I must thank both counsels for taking time to assist this Court by submitting invaluable guideline Judgments with regard to the sentence.
   
4. Throughout the trial you tried to convince the Court that you assumed consent of the victim through her behaviour. However, the Court found that the victim never consented for a sexual intercourse and she was incapable of consenting for such action.
   
5. As it mentioned in latest Archbold in 2011 edition paragraph 20-10 pg 1948, R v. Ashlee [212 C.C.C. (3d) 477] Alberta Court of Appeal "There is a Canadian authority to the effect that there is no defence of 'prior' consent to sexual activity; consent must be given to a particular activity, and at the time of that activity, and is a continuing state of mind, which does not remain operative after a person has become unconscious and incapable of consenting".
   
6. Maximum sentence for an offence of "Rape" is life imprisonment. Tariff for the offence ranges from 05 to 10 years. [See. State v Uili and Another HAC030.2010 Sentence on 10th February 2011 and Poese v. State [2005] FJHC 09]
   
7. Considering the above guidelines I set my starting point of sentencing for 05 years.
   
8. You are a first offender. Therefore you are a person with previous good character. To reflect this fact I reduce one year from your sentence.
   

Aggravating facts

9. Other than the elements of the offence, I find no aggravating circumstances in this case.
   

Mitigating facts

10. You are 29 years old and married with four kids. Eldest is 05 years and youngest is just 03 months old. At the moment you are unemployed. You are the sole bread-winner of the family. You have worked for Fiji Military Force for 07 years.
    
11. Considering these mitigating facts I reduce 02 years from your sentence.
    
12. Now your sentence stands for 02 years imprisonment. I am mindful to the fact that this Court is empowered to suspend sentences which are two years and below. Your counsel drew the attention of this Court to Nariva v. The State [2006] FJHC 6; HAA0148J.2005S, where it was held by Shameem J that;
    

"The Court must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment".

13. Be that as it may, in a very recent judgment, Nawana J had commented about first offenders as follows:
    

State v Vilikesa Tilalevu and Savenaca Mataki [2010] FJHC 258, HAC081.2010 (20 July 2010)) "I might add that the imposition of suspended terms on first offenders would infect the society with a situation - which I propose to invent as 'First Offender Syndrome' - wheople would tempt to coto commit serious offences once in life under the firm belief that they would not get imprisonment in custody as they are first offe. Theltant position is that the society is pervaded wied with crth crimes. Court must unreservedly guard itself against such a phenomenon, which is a near certainty if suspended terms are imposed on first offenders as a rule".

14. You are no more a young offender. By the time you commithis offence you were a father to at least one child out of t of four children you have now. You were happily married to the lady who is the mother to your child. There is no evidence to show that you had any family problems or your wife being unfaithful to you. Even though these are not justifiable reasons for you to commit this crime, those are evidence of your character. You just let your animal instincts to take precedence in this instance.
    
15. Facts in your favour are that you did not behave in brutal and unpardonable manner and this is not a pre-meditated crime. There is no evidence to show that you fled from the scene. You were also under the influence of liquor.
    
16. Legislature had thought it fit to consider the offence of "Rape" deserves a "Life Imprisonment". Choice of sentence reflects the gravity of the offence and extent to which the community denounce such offence.
    
17. Each and every case based on different circumstances and it is thereby the duty of the Court to consider the evidence available and circumstances lead to offending when deciding the sentence.
    
18. In the present case, it is proved that you took advantage of the state of the victim and had sexual intercourse with her without her consent. Therefore, basic elements of the offence were proved beyond reasonable doubt.
    
19. Prosecutor in the sentencing submission pointed to the fact that you have breached the trust placed upon you by the victim and urged the Court to consider that fact as an aggravating fact. I refuse to admit that submission. Victim at the time of the offence was 30 years old and a grown up woman who had experienced sexual intercourse prior to the incident. Therefore, I am of the view that a woman of her experience should not have placed trust on a grown up male who was continuously telling her that he was going to sleep with her.
    
20. There is no doubt that victim's mental faculties were impaired due to the influence of liquor. However, that is not a reason to assume that she had placed trust on the accused.
    
21. After considering all the available evidence and having a fair idea as to the circumstances of offending I am of the view that there are no special reasons for me to impose a non-custodial sentence. Likewise, I find no special reasons in this case warrant lengthy custodial sentence.
    
22. Considering the above situation you are hereby sentenced to 02 years imprisonment. Out of the 02 years period, I order that you spend 06 months in prison custody and imprisonment period to take effect immediately. Remaining 18 months period is suspended for 05 years and will take effect at the conclusion of the 06 months imprisonment period.
    
23. If you commit any other offence during the operational period of suspended sentence and found guilty by a Court, you are liable to serve another 18 months imprisoned.
    
24. 28 days to appeal.
    

On this Thursday the 24th day of March 2011

Kaweendra Nanayakkara
Resident Magistrate