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State v Matasavui [2013] FJHC 156; HAC302.2011S (5 April 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 302 OF 2011S

STATE

vs

ILAITIA MATASAVUI

Counsels : Ms. A. Vavadakua for the State
Mr. J. Savou for Accused
Hearings : 2nd and 3rd April, 2013
Summing Up : 4th April, 2013
Judgment : 4th April, 2013
Sentence : 5th April, 2013

SENTENCE

1. In a judgment delivered yesterday, the court found you guilty and convicted you on the following charges:
   

FIRST COUNT
Statement of Offence

RAPE: Contrary to Section 207(1) and Section 207(2)(b) of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

ILAITIA MATASAVUI on the 14th day of September, 2011 at Lakena, Nausori in the Central Division, penetrated the vagina of V. V with his tongue without her consent.

SECOND COUNT
Statement of Offence

RAPE: Contrary to Section 207(1) and Section 207(2)(b) of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

ILAITIA MATASAVUI on the 14th day of September 2011 at Lakena, Nausori in the Central Division, penetrated the vagina of V. V with his finger without her consent.

THIRD COUNT
Statement of Offence

RAPE: Contrary to Section 207(1) and Section 207(2)(a) of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

ILAITIA MATASAVUI on the 14th day of September 2011 at Lakena, Nausori in the Central Division, had carnal knowledge of V. V without her consent.

2. The brief facts were as follows. You were well known to the complainant and her husband. You were neighbours at Lakena Hill, Nausori. At times, the complainant and her husband often invited you to their house, to share a meal. On 14th September, 2011, after midday, the complainant was gathering firewood at an island next to the Kings Road before Verata Vilage.
   

3. You were also in the area gathering firewood. You approached the complainant. You put a knife to her neck, forced her down on the ground and forcefully took off her clothes. You then unlawfully licked her vagina, poked her vagina with a finger and then inserted your penis into her vagina. She didn't consent to the above, and you well knew she was not consenting to the above, at the time.

4. The courts have repeatedly said that, rape, as a criminal offence, is always a serious offence. It is a serious unlawful intrusion into the privacy of someone. It is a betrayal of a person's dignity. Society looks down on these types of behaviour, and through their representative in Parliament, have prescribed a maximum sentence of life imprisonment. Through the years, the courts have set 7 to 15 years imprisonment as the tariff for the offence. see Mohammed Kasim v The State, Criminal Appeal No. 21 of 1993, Fiji Court of Appeal; Bera Yalimaiwai v The State, Criminal Appeal No. 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. The actual sentence will depend on the aggravating and mitigating factors.

5. The aggravating factors, in this case, were as follows:

(i) The complainant and her husband were your neighbours, and were friendly to you. They often invited you to their house, to share a meal with them. Prior to the incident, you were on friendly terms with them. However, by committing the offence of rape on the complainant, you betrayed the trust they had in you.

(ii) When committing this offence, you put a knife on the complainant's neck, and threatened to kill her if she resisted. This behaviour seriously aggravates the offence. Those who threaten women with a knife, and then rape them, must always expect a severe sentence. In other words, the more serious the threat, the higher the sentence will be.

(iii) When caution interviewed by the police on 21st September, 2011, you told the police that you don't know the reasons why the complainant reported the rape to police on 14th September, 2011. During the trial on 3rd April, 2013, you saw fit to defame the character of the complainant by saying that, the reason she reported the matter to police, was because you saw her having sex with her father. The assessors and the court rejected this view. Nevertherless, your utterance abovementioned revealed your depraved character, and a message ought to be given to you to stop belittling people.

(iv) Your offendings showed your utter disregard to the complainant's right to a peaceful life.

6. The mitigating factors were as follows:
   
   • (i) Since the prosecution submitted no previous conviction, I will treat you as a first offender;
     
   • (ii) You have been remanded in custody since your first appearance in the Nausori Magistrate Court on 19th September, 2011 to today, that is, approximately 1 year 6 months 14 days.
     
7. I will start with Count No. 3. I start with a sentence of 10 years imprisonment. I add 5 years for the aggravating factors, making a total of 15 years imprisonment. For the mitigating factors, I deduct 3 years, leaving a balance of 12 years imprisonment. I sentence you to 12 years imprisonment, with a non-parole period of 11 years.
   
8. I repeat the above process and sentence for Counts No. 1 and 2.
   
9. In summary, your sentence are as follows:
   
   • (i) Count No. 1 : 12 years imprisonment.
     
   • (ii) Count No. 2 : 12 years imprisonment.
     
   • (iii) Count No. 3 : 12 years imprisonment.
     
10. Because of the principle of totality of sentence, I make the above sentence concurrent to each other. Your total sentence is 12 years imprisonment.
    
11. For raping the complainant, Ilaitia Matasavui, I sentence you to 12 years imprisonment, with a non-parole period of 11 years imprisonment, effective forthwith.
    
12. The complainant's name is permanently suppressed to protect her privacy.
    

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecutions, Suva.
Solicitor for Accused : Legal Aid Commission, Suva.