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State v Bolalailai - Sentence [2016] FJHC 1076; HAC350.2016 (28 November 2016)

THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 350 OF 2016

STATE

v

SERUPEPELI BOLALAILAI

Counsel : Ms S. Serukai and Ms S. Tivao for the State
MsT. Kean and Ms V. Filipe for the Accused

Dates of Trial : 7^th; 8^th; 9^th; and 10^th November 2016

Summing Up : 11^th November 2016

Judgment : 11^th November 2016

Sentence : 28^th November 2016

(Name of the complainant is permanently suppressed and will be referred to as A.B.)

SENTENCE
___________________________________________________________________________

[1] SERUPEPELI BOLALAILAI, after being convicted on count of Sexual Assault, Rape and Attempted Rape and contrary to Sections 210(1)(a), (3)(a),207(1), (2)(b), (3) and 208 of the Crimes Decree No. 44 of 2009, you are now brought before this Court for imposition of your sentence.

[2] You pleaded guilty to the charge of Sexual Assault and was duly convicted for that charge. You then pleaded not guilty to the remaining charges of Rape and Attempted Rape in the information. The ensuing trial proper lasted for four days in this Court; during which, the complainant, Noela Rakawati, Dr. Ilisapeci Vereti, and the two Police officers, who were involved with the recording your caution interview statement have given evidence for the prosecution while you also offered evidence.

[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 to the count of Rape and Attempted Rape.

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

(i) The 7 year old complainant was a student at St. Vincent Primary and on 25^th October 2015, you, after calling her into your room by giving her a 2 dollar coin, tried to insert your penis into her vagina and then inserted two fingers into it.

(ii) When Noela came to see you, she saw you were with the complainant and she was naked from her waist. Noela then alerted her mother and upon questioning the complainant revealed what you did. The matter was then reported to Police.

(iii) On the same day, the complainant was medically examined. At the time of examination, dried blood clots were noted in her groin and her left labia minor had a small abrasion.

[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 7 of age at the time of the Rape and therefore, is a child. The tariff for Rape of a child 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 child is 10 years. The tariff is between 10 years to 16 years.

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

"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."

[8] In determining the starting point within the said tariff, Goundar J, in Koroivuki v State [2013] FJCA 15 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] The sentence for Attempted Rape is 10 years of imprisonment and the tariff is set at 1 to 5 years in Aunima v State [2001] FJHC 105.

[10] The sentence for Sexual Assault is 10 years and its tariff is set at 2 – 8 years imprisonment as per State v Abdul Kaiyum HAC 160 of 2010, and State v. Laca [2012] FJCA 1414.

[11] Considering the nature of offending, and in the light of the above guiding principles, I commence your sentence at 12 years of imprisonment for the count of Rape.

[12] The aggravating factors are:

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

(ii) Opportunistic planning;

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

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

(v) The 46 years of age gap between you and the complainant;

[13] I add 2 years and 8 months on your sentence for above aggravating factors. Now your sentence is 14 years and 8 months.

[14] The mitigating factors are:

(i) You are a first offender;
(ii) You co-operated with the Police during investigations.

[15] I deduct 1 year from your sentence for Rape on the above mitigating factors. Now the sentence is 13 years and 8 months.

[16] You were in remand for this case for a period of 6 months and 20 days and after conviction another 17 days, pending sentencing. I consider it as a total period of 8 months.

[17] In view of the provisions contained in Section 24 of the Sentencing and Penalties Decree 2009, I deduct your 8 month long remand period from your sentence and now the sentence to serve is 13 years.

[18] You pleaded guilty to the count of Sexual Assault on the first available opportunity. On that charge sentence of 6 years is initially imposed but is reduced to 4 years of imprisonment in view of early guilty plea. In considering the aggravating and mitigatory grounds a further 6 months is reduced from your sentence on this charge. Your final term of imprisonment on Sexual Assault is therefore 3 years and 6 months.

[19] In relation to Attempted Rape you are sentenced to a 3 year term of imprisonment after aggravating and mitigating grounds are considered.

[20] Considering Section 18 (1) of the Sentencing and Penalties Decree, I impose 10 years and 4 months of non-parole period as per the judgment of Supreme Court in Tora v The State [2015] FJSC 23.

Summary

[21] Your final sentence is therefore as follows:

(i) For the count of Rape – 13 years of imprisonment with a Non-parole period fixed at 10 years and 4 months.
(ii) For the count of Sexual Assault - 3 years and 6 months of imprisonment
(iii) For the count of Attempted Rape - 3 years of imprisonment.

[22] The terms of imprisonments imposed in relation to charges of Sexual Assault and Attempted Rape are to run concurrently with the term of 13 years of imprisonment imposed on the charge of Rape.

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

Achala Wengappuli
JUDGE

At Suva
This 28^th Day of November 2016

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