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State v Savou [2011] FJHC 370; HAC067.2010 (1 July 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 067 OF 2010S

STATE

vs

BENJAMIN SAVOU

Counsels : Ms. M. Tikoisuva for the State
Accused in Person
Hearing : 7th and 8th June, 2011
Summing Up : 10th June 2011
Judgment : 10th June, 2011
Sentence : 1st July, 2011

SENTENCE

1. On 23rd April, 2010, you were charged with three counts of "assaulting", "raping" and "wrongfully confining" the complainant, on 7th March 2010, at Navua in the Central Division, contrary to sections 207, 275 and 286 of the Crimes Decree 2009. On 7th June, 2011, the first day of trial, you pleaded guilty to assaulting the complainant. After a two day trial, you were found guilty of raping the complainant, but not guilty of wrongfully confining her. On 10th June, 2011, you were convicted of assaulting and raping the complainant, on 7th March 2010, at Navua in the Central Division.

2. The brief facts were as follows. The complainant was you girlfriend, and you resided together in your house at Navua, two weeks prior to 6th March 2010. On 6th March 2010, your relationship with the complainant ended. It was a Saturday. The complainant went out drinking with friends. She returned with your aunty to your village, and you stopped her vehicle early morning on 7th March 2010. It was now Sunday. Although you two have broken up, you were nevertheless unhappy about her going out and drinking. You then repeatedly assaulted her by punching and kicking her. You even tried to strangle her with an electrical cord. You then took her into your bedroom and had sexual intercourse with her, without her consent. You also knew, at the time, she was not consenting to sex with you. The matter was reported to police. An investigation was carried out. You were later charged with raping and assaulting her, at the time.

3. I note you are 26 years old, previously married, with two young children to support. You were supporting your elderly mother, and a nephew. According to you, you assaulted your ex-girlfriend because she was cheating on you. But that is no reason to rape her. I'm told that this incident has taught you a big lesson. Out of the two offences you were convicted of, "rape" is the more serious, and I will deal with it first.

4. Rape is a serious offence. The maximum sentence is life imprisonment. For adults, the tariff is a sentence between 7 to 15 years imprisonment: see Mohammed Kasim v The State, Criminal Appeal No. 21 of 1993, Fiji Court of Appeal; Bera Yalimaiwai v The State, Criminal Appeal AAU 0033 of 2003, Fiji Court of Appeal; Navuniani Koroi v The State, Criminal Appeal No. AAU 0037 of 2002, Fiji Court of Appeal and Viliame Tamani v the State, Criminal Appeal No. AAU 0025 of 2003, Fiji Court of Appeal.

5. "Assault occasioning actual bodily harm" carries a maximum sentence of 5 years imprisonment. However, the tariff for this offence is a suspended prison sentence where there is a degree of provocation and no weapons used to 9 months imprisonment for the more serious cases of assault: State v Nayacalagilagi, Criminal Case No. HAC 165 of 2007, High Court, Suva. The actual sentence will depend on the aggravating and mitigating factors.

6. The mitigating factors were as follows:

(i) You are 26 years old, previously married and looking after 2 young children, an elderly mother, and a nephew;

(ii) You've been remanded in custody for about three weeks;

(iii) You said, your ex-girlfriend was "cheating" on you.

7. The aggravating factors were as follows:

(i) There was no need for you to assault your ex-girlfriend. She was an individual, and you don't "own" her, and you have no right whatsoever to assault her to follow your will;

(ii) You also have no right whatsoever to force yourself sexually on the complainant, without her consent. By doing so, you showed utter disregard to her personal safety, and her dignity.

8. On the count of rape, I start with a sentence of 7 years imprisonment. For the mitigating factors, I decrease the 7 years by 1 year, leaving a balance of 6 years imprisonment. For the aggravating factors, I increase the 6 years by 2 years to 8 years imprisonment. For raping the complainant, I sentence you to 8 years imprisonment.

9. On the assault charge, I sentence you to 18 months imprisonment.

10. In summary, on the "rape" conviction, I sentence you to 8 years imprisonment. On the "assault" conviction, I sentence you to 1½ years imprisonment. Both the above sentences, are concurrent to each other, that is, a total sentence of 8 years imprisonment. The total 8 years imprisonment is concurrent to your present prison term. Pursuant to section 18(1) of the Sentencing and Penalties Decree 2009, you are to serve a non-parole period of 6 years imprisonment. I order so accordingly.

Salesi Temo
JUDGE

Solicitors for the State : Office of Director of Public Prosecution, Suva. Solicitors for Accused : In Person