Home | Databases | WorldLII | Search | Feedback High Court of Fiji

State v Beranagauna [2015] FJHC 178; HAC083.2014LAB (13 March 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 083 OF 2014 LAB

STATE

V

PETERO BERANAGAUNA

Counsel : Mr S. Vodokisolomone for State
Mr. M. Fesaitu for Accused

Hearing : 12 March, 2015
Sentence : 13 March, 2015

SENTENCE

1. Yesterday, in the presence of your counsel, you pleaded guilty to the following two counts in the information:

First Count

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (b) of the Crimes Decree 44 of 2009.

Particulars of Offence

PETERO BERANAGAUNA on the 26th day of December 2014, at Naruwai, Bua in the Northern Division penetrated the vagina of L.K with his finger without her consent.

Second Count

Statement of Offence

INDECENT ASSAULT: Contrary to Section 212 (1) of the Crimes Decree 44 of 2009.

Particulars of Offence

PETERO BERANAGAUNA on the 26th day of December 2014, at Naruwai, Bua in the Northern Division unlawfully and indecently assaulted L.K by fondling her breast with his hand

2. You told the court that you did the above voluntarily and out of your own free will. You said, no-one pressured or forced you to plead guilty to the offences. Your counsel confirmed your above position in court.

3. The prosecution then read their summary of facts in court. On 26 December 2014, there was a dance at a Naruwai Village hall. The complainant, aged 16 years at the time, was watching the dance from the outside. You, being 20 years old at the time, was also watching the dance, from the outside. You called the complainant to you, and she came to you, to find out what you wanted. You suddenly forcefully held the complainant with your hand, and took her to a darker area. It was night time. You then pushed her to the ground, and then you lay ontop of her. You then put your hand through her skirt, and tried to pull her panty down. At the same time, you inserted your finger into her vagina, and pushed the same in and out of her vagina, without her consent. At the time, you knew very well that she was not consenting to the same, because she was desperately struggling against you. You also unlawfully fondled her breast, without her consent, and you well knew, she was not consenting to your act.

4. The court then checked with you and your counsel to find out, whether or not you are admitting the elements of "rape" in count no. 1, and the elements of "indecent assault" in count no. 2. Through your counsel, you admitted that you inserted your finger into the complainant's vagina without her consent, and that you well knew she was not consenting to the same, at the material time. You also admitted through your counsel that, you unlawfully and indecently fondled the complainant's breast without her consent, and you well knew she was not consenting, at the time. As a result of the above, the court found you guilty as charged on both counts, and convicted you accordingly on those counts.

5. Of the two offences, "rape" is the more serious one. It carries a maximum sentence of life imprisonment. Previous case laws had set the tariff of the rape of an adult a sentence between 7 to 15 years imprisonment. For "indecent assault", the maximum sentence is 5 years imprisonment. The tariff is a sentence between 1 to 4 years imprisonment. The final sentence will depend on the mitigating and aggravating factors.

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

(i) This was an unprovoked attack on a unsuspecting 16 year old female complainant, who was watching a dance in the village;

(ii) By attacking her, you have shown an utter disregard to her right as a human being, and her dignity;

(iii) In violating her in the manner you did, you will certainly pay with the loss of your liberty.

7. The mitigating factors, were as follows:

(i) At the age of 21 years, this is your first offence;

(ii) You pleaded guilty to the offence early, and as a result, you have saved the court's time, and the need for the complainant to relive her ordeal by giving evidence in court;

(iii) You have been remanded in custody since your first appearance in the Magistrate Court on 29 December 2014, that is, approximately 2 months 2 week ago.

(iv) You are remorseful, as shown by your early guilty plea, and your girlfriend is 8 months pregnant.

8. On the "rape" charge (count no. 1), I start with a sentence of 8 years imprisonment. I add 4 years for the aggravating factors, making a total of 12 years imprisonment. For the mitigating factors (i), (iii) and (iv), I deduct 2 years, leaving a balance of 10 years imprisonment. For pleading guilty early, I deduct another 3 years, leaving a balance of 7 years imprisonment. On the rape charge, I sentence you to 7 years imprisonment.

9. On the "indecent assault" charge (count no. 2), I start with a sentence of 1 year imprisonment. I add 1 year for the aggravating factors, making a total of 2 years. I deduct 1 year for the mitigating factors, leaving a balance of 1 year imprisonment.

10. In summary, your sentences are as follows:

(i) Count no. 1 - Rape : 7 years imprisonment.
(ii) Count no. 2 - Indecent Assault : 1 year imprisonment.

11. Because of the totality principle of sentencing, I direct that the above sentence be made concurrent to each other, that is, a final total sentence of 7 years imprisonment.

12. Petero Beranagauna, I sentence you to 7 years imprisonment, with a non-parole period of 5 years, effective forthwith.

13. The name of the female complainant is permanently suppressed to protect her privacy.

Salesi Temo
JUDGE

Solicitor for State: Office of Director of Public Prosecution, Labasa
Solicitor for Accused: Legal Aid Commission, Labasa