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State v Bakaya - Sentence [2015] FJHC 839; HAC67.2013 (30 October 2015)

THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 067 OF 2013

STATE

V

SASHI SALEN BAKAYA

Counsel : Ms Navia S. & Ms Lodhia S. for the State
Ms Chand P. for the Accused

Dates of Trial : 26th October and 27th October 2015
Summing Up : 28th October 2015
Judgment : 29th October 2015
Sentence : 30th October 2015

Name of the victim is permanently suppressed and referred to as M.R.

SENTENCE

[1] Mr. Sashi Salen Bakaya, after being convicted on a count of Rape, contrary to Section 207(1),(2)(a) of the Crimes Decree No. 44 of 2009, you are now brought before this Court for imposition of your sentence.

[2] You pleaded not guilty to above charge. The ensuing trial lasted for three days in this Court; during which, the complainant, her cousin brother and a medical witness gave evidence for Prosecution, while you and another offered evidence for the Defence.

[3] At the conclusion of trial; having reviewed the evidence and its summing up to assessors, this Court decided to accept their unanimous opinion and found you guilty and convicted you of the said charge.

[4] The following facts were proved during the trial:

(i) The Complainant, M.R. was born in March 1998 and was living with her mother and a sister after her father's death at Corbett Avenue in Nausori. You are married to her mother's sister and lived 100 meters away from her house.

(ii) On 22nd December 2012, M.R. was alone at home in the night with two infants as her mother and sister were drinking grog at your house. M.R had gone to sleep on a mattress laid on the floor of their small tin house. There was a candle lit and placed on a cupboard where she slept.

(iii) In the night she was woken up when you laid yourself on top of her and closed her mouth. You have then, having taken her panties off, inserted your penis into her vagina without her consent. You were identified by M.R. by candle light.

(iv) You were also seen by her cousin brother who happened to be in the vicinity of M.R.'s house and alerted a known policeman having heard from M.R. what happened to her when she came out of the house that night crying.

(v) You were arrested by the policeman and your statement was recorded by the Police.

(vi) In March 2012, you, your wife and another influenced M.R. to sign a letter to "solve the case" with a promise of money to the effect that she could not identify the rapist that night.

[5] According to Section 207(1) of the Crimes Decree No. 44 of 2009, the maximum punishment for rape is imprisonment for life. It is a serious offence.

[6] The complainant was 14 years of age at the time of the rape and therefore, is a juvenile. The tariff for rape of a juvenile is confirmed in the Judgment of Chief Justice Gates in Raj v State [2014] FJSC 12. The starting point of imprisonment for rape of a juvenile is 10 years. The tariff is between 10 years to 16 years.

[7] In Mohamed Kasim v The State(unreported) Cr. Case No. 14 of 1993; of 27 May 1994, the Court of Appeal observed thus:

"We consider that at any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment of seven years. It must be recognized by the Courts that the crime of rape has become altogether too frequent and that the sentences imposed by the Courts for that crime must more nearly reflect the understandable public outrage. We must stress, however, that the particular circumstances of a case will mean that there are cases where the proper sentence may be substantially higher or substantially lower than that starting point."

[8] In determining the starting point within the said tariff, Suresh Chandra J, in Laisiasa Koroivuki v State(Criminal Appeal AAU 0018 of 2010) has formulated the following guiding principles;

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range".

[9] Considering the nature of offending, and in the light of the above guiding principles, I commence your sentence at 11 years of imprisonment for the count of Rape.

[10] The aggravating factors are:

(i) Breach of trust the victim had towards you;

(ii) Violation of her right to privacy of her home by your intrusion to her dwelling place in the night;

(iii) Interference with the complainant by compelling her to sign a letter through her mother to ensure your freedom from punishment;

(ii) Significant degree of opportunistic planning;

(iii) Taking advantage of the victim's vulnerability;

(iv) Display of total disregard to the victim's wellbeing.

[11] The Victim Impact Assessment Report of the complainant reveals that she is now treated by her relations with strong feeling of dislike towards her since she had resorted to criminal justice. This had to be considered as very disturbing situation since both her mother and father are now dead and she currently lives with an uncle. It was in Drotini v State [2006] FJCA 26, the Court of Appeal observed thus;

"There are few more serious aggravating circumstances than where the rape is committed on a juvenile girl by a family member or someone who is in a position of special trust. The seriousness of the offence is exaggerated by the fact that family loyalties and emotions all too often enable the offender or other family members to prevent a complaint going outside the family. If the child then remains in the family home, the rapist often has the opportunity to repeat the offence and to hope for the same protection from the rest of the family."

This observation was reemphasised by the Court of Appeal in Raj v State [2014] FJCA 18.

[12] I add 4 years on your sentence for above aggravating factors. Now your sentence is 15 years.

[13] The mitigating factors are:

(i) You are a first offender;

(ii) You are a 30 year old farm hand and earns $ 100 a week;

(iii) You are married and support your wife and your 6 children as the sole breadwinner of the family. The eldest among your children is 9 years of age and three of them are schooling;

(iv) You look after your 54 year old mother;

(v) No significant injury on victim;

(vi) No weapon was used on the victim.

[14] I deduct 3 years from your sentence for the above mitigating factors. Now the sentence is 12 years.

[15] You drew attention of Court to sentencing of the High Court of Fiji in State v Volau [2013] FJHC 100 and State v Vono [2015] FJHC 88 and invited this Court to impose "a minimum terms of 10 years" and also to consider applicability of totality principle in sentencing you. The concessions allowed by this court in these two sentences cannot be given to you as per reasons contained in paragraph [10](iii) of this sentence.

[16] In Vulawalu v State [2011] FJSC 6, the apex Court reproduced the following passage to clarify the totality principle:

"The effect of the totality principle is to require a sentencer when ordering a series of sentences to run consecutively to consider whether the total sentence is too much and will have a crushing effect on the offender. If a sentence concludes that making a series of sentences cumulative will have a crushing effect on the offender, then the sentences should be made concurrent. That is how the totality principle operates."

Since you are charged with a solitary count of rape, the totality principle has no application to your sentence.

[17] You were in remand for this case for almost a two week period.

[18] I deduct your two week long remand period from your sentence and now the sentence is 11 years 11 months and two weeks.

[19] Considering Section 18 (1) of the Sentencing and Penalties Decree, I impose 10 years of non-parole period in view of the unreported judgement of Court of Appeal in Paula Tora v The State Crim App. No. AAU 0063/2011.

[20] Your final sentence is as follows:

(i) For a count of Rape – 11 years, 11 months and two weeks of imprisonment.

Summary

[21] You are sentenced to 11 years, 11 months and two weeks of imprisonment. You will not be eligible for parole until you complete serving 10 years of imprisonment.

[22] You have 30 days to appeal to the Court of Appeal.

ACHALA WENGAPPULI
JUDGE

At Suva
30th October 2015

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