DPP v Veresas [2013] FJMC 72; Criminal Case 1560.2007 (25 January 2013)

IN THE MAGISTRATES COURT AT NASINU
Criminal Case No. 1560/2007

DPP

-v-

LEONE KOTOBALAVU VERESA

Ms. Luisa Latu for the DPP
Mr. Akuila Naco for the Accused

SENTENCE

1. The Accused was found guilty and convicted for the offence of rape after full trial, DPP v Veresa [2012] FJMC 167; Criminal Case 1560.2007(17July 2012).
   
2. The Charge read as follows;

CHARGE:

Statement of Offence [a]

RAPE: Contrary to Section 149 and 150 of the Penal Code Act 17.

Particulars of Offence [b]

LEONE KOTOBALAVU VERESA, on the 8th day of December, 2007 at Nasinu in the Central Division had unlawful carnal knowledge of Kelera Veresa without her consent.

4. The Accused and the virtual Complainant are related as biological brother and sister. The day in question, that afternoon, the victim was called by the accused to his home. The accused was acquainted by their parents regarding some lesbian behavior and stealing of money. He then questioned the victim regarding homo sexual relationship (Lesbian) with a lady and stealing of $600 money which she denied. The accused was having party gathering and fully drunk at the moment. The victim was then assaulted and questioned. While in this process, the victim urinated and passed feces because of fear and assaults. She was 22 years at that time. Then, on request of the accused’s wife, the victim had a bath and cleaned herself and then, she was taken into a room for counseling instead the accused ravished and raped her.
   
5. Section 150 of the Penal Code provides the punishment.
   

Punishment of rape

“150. Any person who commits the offence of rape is liable to imprisonment for life, with or without corporal punishment”

6. Tariff for the offence of this nature (incestuous rape) is discussed in many cases including Drotini v State Cr. App. AAU001/05, State v Tamanitokula (2010) FJHC 373. HAC 028/2010 (2 September 2010) and The State v Navaunioni Koroi (Unreported) Cri App Case No HAA 050.2002S. It is between 10 years to 20 years. In Navauniami Koroi (HAA 0050.2002), Shameem J. found that it was a serious aggravating factor that the rape victim was the convict's daughter and added four years to the sentence to reflect that and again Shameem J. In Poese (HAA0091J.2004S) in dealing with an accused convicted of raping his 17 year old daughter, and similarly to this case showing a dagger at the time) , found that a term of 15 years imprisonment was appropriate.
   
7. But this court cannot exceed its maximum sentencing range 10 years. I commence your sentence at 10 years imprisonment.
   
8. Both parties have filed closing submissions and mitigating submissions. The Court has called the Victim Impact report and Antecedent Report. I am mindful of those documents.
   
9. Aggravating Factors:
   
   • (a) The virtual Complainant is your sister;
     
   • (b) You betrayed the trust of brother and sister;
     
   • (c) The victim was severely assaulted;
     

Considering the above aggravating factors I increase your sentence by 2 years now your sentence is 12 years imprisonment.

10. Mitigating Circumstances:
    
    • (a) You are 1st offender and ex Special Police Inspector;
    • (b) You are 33 years old;
    • (c) Married with four children( Age 10, 8, 6 and 2 years);
    • (d) Baby sitter of 4 children
    • (e) Care giver of the wife’s 64 years old grandmother.
    • (f) Matter is hung over 5 years over his head.
    • (g) You suffered humiliation and mental agony.
    • (h) You are totally remorseful of your actions;
    • (i) You seek suspended sentence.
      

Considering above mitigating factors I reduce your sentence by 4 years. Now your actual sentence is 08 years imprisonment.

10 It is to be noted that this is an incestuous rape. The circumstance offending is ironic. The accused was overjoyed by his “Sukuna bowl” winning for the first time. He started drinking that Friday after winning with his mates and continued to drink almost 24 hours till this incident happened. He drank several brands of alcohols such as Whiskey, Rum, Gin, Beer and home brewed. His mind was anomalous. It seems that the act was done by his alcohol, if he was in normal sense he would not have done this act. It is seen that act was done to get rid of homo sexual behavior of the victim (According to the accused) and get affection to men and natural behavior of sex. It should be noted that there is no single injury in genital areas and the victim was tuned up and ravished before the act. This act was to get affection for natural behavior of sex. This act was suggested to him by his alcoholic mind. Thus, superficially this is a grave, cynical crime but attended alcoholic circumstance says that is was not done for lust but to chasten the victim from homo sexual behavior. This was a random act and it was not premeditated.

11 The accused sought court leniency and forgiveness. He stressed that he be given a suspended sentence. I have already concluded 8 years imprisonment and under section 26(2) a sentence over two year cannot be wholly suspended by a Magistrate. I consider law in depth for this matter.
12 In Sec 15(3) of the Sentencing and Penalties Decree clearly says that court has to consider all other options and the prison sentence should be the last resort. This is the main of object of sentencing. I reproduce it for clarity;
As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part (Emphasis is mine).

13 Superior Courts have reiterated this objective for fist offenders. In Prasad v State [1994] FJCA 19; Aau0023u.93s (24 May 1994), Fiji Court of Appeal held that ".... Courts ought to bend backwards to avoid immediate custodial sentence for first offenders." It has been noted in Prasad v The State [1994] FJHC 132 that criminologists recognise that a prison sentence should be the last resort especially where a first offender&#s concernederned unless the charge is very serious or the offender is dangerous and imprisonment is called for in the public int or in the interest of the offender himself. (Emphasize is mine).

14 In seIn sentencing, I draw my attention to sentencing principles which set out in Sentencing and Penalty Decree 2009.

Section 4(2) provides;”In sentencing offenders a court must have regard to;

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender’s culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender’s previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option.”

15 What are the options available for the court? The sec 15 (1) set down the range of the sentences court can impose .They are as follows;

(a) record a conviction and order that the offender serve a term of imprisonment;

(b) record a conviction and order that the offender serve a term of imprisonment partly in custody and partly in the community;

(c) record a conviction and make a drug treatment order in accordance with regulations made under section 30;

(d) record a conviction and order that the offender serve a term of imprisonment that is wholly or partly suspended;

(e) with or without recording a conviction, make an order for community work to be undertaken in accordance with the Community Work Act 1994 or for a probation order under the Probation of Offenders Act [Cap. 22];

(f) with or without recording a conviction, order the offender to pay a fine;

(g) record a conviction and order the release of the offender on the adjournment of the hearing, and subject to the offender complying with certain conditions determined by the court;

(h) record a conviction and order the discharge of the offender;

(i) without recording a conviction, order the release of the offender on the adjournment of the hearing, and subject to the offender complying with certain conditions determined by the court;

(j) without recording a conviction, order the dismissal of the charge; or

(k) impose any other sentence or make any other order that is authorized under this Decree or any other Act.

16 Section 26(1) the said Decree says;

"On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or part of the sentence, if it is satisfied that it is appropriate to do so in the circumstances."

17. In "Divendra Bija vs State" 43 FLR 144, it was held "each case must be assessed and evaluated in its true merits and that the best guidance as always is for the courts to grasp the essence of established general principles of sentencing and apply them based on the fundamental premise that a sentence should not be harsh and excessive or wrong in principle". (Emphasis is mine)

17 Partly suspension of a sentence is therefore satisfied by this court and appropriate with relate to offence. When contemplating, it is a sad and unfortunate incident occurred but the offence was done by the accused. But he was so foolish and no proper judgment could be taken at that time due to his anomalous mind. Normally, incestuous rapes are done by perpetrators for long period of time on victims and many times but in this occasion it was a single act of rape. I therefore decide to give partial suspended sentence.

18 You, LEONE KOTOBALAVU VERESA, are sentenced to 08 years imprisonment and your sentence will run on every weekends. That means you attend/admit every Friday 7pm to Sunday 7pm to the correction centre to serve your sentence. Your sentence is partially suspended on rest of weekdays. That means you will be released from prison on every Sunday 7pm to Friday 7pm. This sentence is with effect from today. By this sentence you will serve 104 days (52 weeks X 2) in custody per year. I do not set any non parole period. You are abide by the Prison Rules and Regulations. The court hopes this sentence will proportionate the crime and ease your family business. But you are severely warned not to re offend and you are placed on non contact order and non molestation order under Domestic Violence Decree 2009 considering victim's impact report.

19 If you want to appeal, you may appeal within 28 days to the High Court of Fiji. A copy of the sentence is given to the both parties for this purpose.

Sumudu Premachandra
Resident Magistrate-Nasinu

At Nasinu, Fiji Islands,
delivered on 25th January 2013