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State v Lutunasobasoba - Sentence [2015] FJHC 887; HAC02.2014 (17 November 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 02 OF 2014

BETWEEN:

STATE

AND:

ELIA LUTUNASOBASOBA

SENTENCE

1. You, Elia Lutunasobasoba stand convicted for one count of rape contrary to section 207(1) and 207(2)(a) of the Crimes Decree, which carries a maximum penalty of life imprisonment.
   
2. Subsequent to the hearing of this charge and the unanimous verdict of guilt by the three assessors, the court found you guilty and convicted for this offence of rape.
   
3. It was proved at the conclusion of the hearing that you saw the victim was going into the room of Lemeki to get mattress, pillows and blanket, while you were having your breakfast. You then went into the room and told the victim that you will give her $10 if she do some bad things with you. She refused it. You then pushed her on to the bed and came on top of her. You covered her

mouth from one of your hands and removed her pant and undergarment from other hand. You then removed you pant and inserted into her vagina with your penis. The victim did not consent for you to insert into her vagina with your penis. You are a grandson of the victim's adopted parents and was staying at their house during that period as you were going to work as a security officer at FSC.

4. Rape is the worst form of sexual assault, which infringes person's dignity, pride and confident. Sexual violence on juveniles by the people who lives with them at their own domestic environment is a matter of great concern as such crimes have now become prevalent in the society. Domestic family environment is being widely considered as safe and protected place for the children, however, truing that safe and protected place into a place of abuse and violence must be condone with disgrace.
   
5. Having considered the section 4 (1) of the sentencing and penalties decree and the serious nature of this offence, I select the principle of deterrence as the main purpose of this sentencing. It is a responsibility of the court, to demonstrate the grave seriousness of the offences of this nature to the public in sentencing. I am mindful of the principle of rehabilitation; however, the court must give priority to deter the offenders and other persons from committing offences of this nature, while preserving the principle of rehabilitation.
   
6. Hon. Chief Justice Gates in Anand Abhay Raj (Special leave to appeal No. CAV003 of 2014) held that the tariff for rape of a juvenile is between 10 -16 years' imprisonment period. Having considered the nature of this offence and the seriousness surrounded with the commission of the offence, I select 10 years as the starting point.
   
7. You were 30 years old and the victim was 13 years old at the time of this incident took place. By virtue of your age and the position in the house, you were in a position of trust and responsibility. Instead of discharging such a responsibility with care and maturity, you chose to abuse that trust by committing this crime. You exploited the vulnerability and naivety of the victim, when she was alone at home with you. I consider these factors are aggravating circumstances of this crime.
   
8. I now turn on to mitigating factors for you. You have no previous convictions. You are 33 years old and married with five children. The learned counsel for the defence submitted in her mitigation submissions that you are the sole breadwinner for your family and especially your children need your assistance. You have spent 4 months and 13 days in remand prior to this sentence.
   
9. Having considered the above mentioned aggravating factors, I increase 2 years to reach 12 years of interim imprisonment period. In considering the mitigating factors which I discussed above, I reduce 1 year to reach the final sentence of 11 years imprisonment for the offence of rape.
   
10. Accordingly, Mr. Elia Lutunasobasoba, I sentence you Eleven (11) years of imprisonment period for the offence of rape contrary to section 207(1) and 207 (2) (a) of the Crimes Decree. In pursuant of section 18 (1) of the Sentencing and Penalties Decree, you are not eligible for parole for a period of 9 years.
    

11. 30 days to appeal to Court of Appeal.

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
17th of October 2015

Solicitors : Office of the Director of Public Prosecutions Office of Legal Aid Commission