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State v Korotapu [2010] FJHC 562; HAC042.2010 (15 December 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No: HAC 042 of 2010

BETWEEN:

STATE

AND:

VILIAME ELIA KOROTAPU

Counsel: Mr. T. Ravuniwa for the State
Ms. M. Lemaki for the Respondent

Date of Hearing: 10 December 2010
Date of Judgment: 15 December 2010

SENTENCE

[1] The accused pleads guilty to rape of a 12 year-old girl.

[2] The facts are that on 5 September 2010 the victim went to a beach near her home to collect sea shells. She met the accused at the beach. The accused is her cousin. The accused grabbed her hand and pulled her into the bush and raped her by inserting his penis into her vagina.

[3] The accused is 17 years old. Under the domestic law he is an adult, but under the international convention, he is a child. I bear in mind that a prison sentence should be the last resort but a custodial sentence is inevitable in a case of rape.

[4] Rape is a serious offence. The maximum penalty for rape is life imprisonment. Rape of a child is even more serious because children fall into the category of vulnerable victims. In the present case, the victim was of a very tender age. The accused said that she had consented to sex but the law does not recognize her to have the capacity to consent. In other words, she is not of a legal age to consent.

[5] The accused resides with his mother. His parents are separated. At the time of the offending the accused was a student. He left school after he was charged. He is a first time offender and his family has reconciled with the victim's family.

[6] Since the victim is a child of a tender age, I use 10 years as my starting point. The aggravating factor is that the victim was related to the accused and being an older person, he was in a position of trust with the victim. I increase the sentence to 11 years imprisonment to reflect the aggravating factor.

[7] The mitigating factors are compelling. The accused is a young and a first time offender. He comes from a disadvantaged background. He was in custody on remand from 20 September 2010 to 11 November 2010. He entered an early guilty and relieved the victim from giving evidence. The two families have reconciled. I give considerable weight to these factors and reduce the sentence to 4 years imprisonment.

[8] The accused is convicted as charged and sentenced to 4 years imprisonment with a non-parole period of 2 years and 6 months.

Daniel Goundar
Judge

At Labasa
Wednesday 15 December 2010

Solicitors:

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