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

  Download original PDF

State v Cevamaca [2016] FJHC 1138; HAC 06 of 2014 (29 December 2016)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 06 OF 2014

STATE

vs.

ERONI CEVAMACA

Counsels : Mr. T. Qalinauci with Ms. S. Naibe for the State
: Mr. J. Singh for the Accused

Dates of Hearing : 6, 7 December, 2016
Closing Speeches : 8 December, 2016
Date of Summing Up : 13 December, 2016

Date of Judgment : 15 December, 2016

Date of Sentence : 29 December, 2016

SENTENCE

__________________________________________________________

1. In a judgment delivered on 15 December, 2016 the court found the accused guilty and convicted him for one count of rape as per the following information:
   

COUNT ONE

Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree, 2009.

Particulars of Offence
ERONI CEVAMACA, on the 11^th day of January 2014, at Lautoka in the Western Division, inserted his penis into the vagina of LITIA LEWAIRAVU, without her consent.

The brief facts were as follows:

2. In the early hours of the morning of 11^th January, 2014 the victim and her friends met the accused and his friends outside the Zone Nightclub. Upon invitation of the accused for more drinks all went to the house where the accused was renting.
   
3. In the house the accused pulled the victim’s hand, she started screaming, however, the accused was able to pull her inside the bedroom. In the bedroom he pushed her on the bed since the victim was screaming the accused covered her mouth and punched her right thigh three times.
   
4. On the bed the accused was forcing himself on the victim. He removed one side of her leggings and then inserted his penis into her vagina and had sexual intercourse with her without her consent.
   
5. Both counsel have filed written submissions.
   
6. Counsel for the accused presented the following personal details and

mitigation on behalf of the accused:

1. The accused is 33 years of age;
2. He is married with two children aged 2 years and five months respectively;

100. The accused is employed as a Planning Officer who supports his family and his parents;

4. The accused’s son is suffering from a heart condition who requires frequent medical attention.
   

7. Furthermore, counsel for the accused at paragraph 1.6 (I) of his written mitigation submission stated:

“Whilst the Accused has been found guilty by this Honorable Court and whilst the Accused respects the decision of this Honorable Court the Accused humbly submits that he still maintains that the act of sexual intercourse with the complainant was consensual.”

8. It is unfortunate that counsel for the accused has embarked into making such an insinuating comment on behalf of the accused knowing very well that the court has already convicted the accused. It is the duty of counsel to file submissions in court that are appropriate in its contents. Whilst the comments made shall not be taken against the accused I will also desist from making a finding whether the paragraph in question amounts to contempt of court.
   
9. I find the accused to be a person with a clean record and a first offender.
   
10. I accept in accordance with the Supreme Court decision in Anand Abhay
    

Raj –vs- The State, CAV 0003 of 2014 that the personal circumstances of an accused person has little mitigatory value in cases of sexual nature.

11. The aggravating features are:
    
    1. Breach of Trust

The accused knew the victim although by face as his neighbour. The victim trusted the accused so she went to his house.

2. The accused took advantage of the victim by luring her to his home for more drinks hence taking advantage of the victim and her vulnerability.
   

100. Use of violence

According to the victim the accused punched her right thigh three (3) times also the Doctor had seen blood upon vaginal examination of the victim which suggests use of force.

12. The maximum penalty for the offence of rape is life imprisonment which means this offence falls under the most serious category of offences. In Mohammed Kasim v The State (unreported) Cr. Case No. 14 of 1993; 27 May 1994, the Court of Appeal had stated:
    

“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 the starting point.”

13. It is a well-known fact in this Country that sexual offences involving women continue to rise. In most cases the perpetrators are people who are known to the victims. It is the duty of the court to protect young women from sexual violations of any kind that is the reason why the law makers have imposed life imprisonment as the maximum penalty.
    
14. Mr. Cevamaca you have committed an abhorrent crime against a victim who trusted you. It will be difficult for her to forget what you had done after luring her into your house with the view to having more drinks. The experience and trauma that the victim had to endure due to your personal lust cannot be ignored.
    
15. The victim was having an enjoyable time with her friends and would have never expected anyone to treat her the way you did. You had no sympathy for the victim when she was screaming and had refused to have sex with you. Your behaviour towards the victim was deplorable. Think of the discomfort the victim and her family had to endure as a result of your selfish action. I reject counsel’s submission not to impose a custodial sentence since it will cause irreparable harm to the accused’s

family. This court will be failing in its duty if a deterrent custodial sentence is not imposed.

16. According to the Victim Impact Statement the victim suffered shock psychologically. She felt shattered and heartbroken being traumatized by the incident for about a week. Ever since the incident took place the victim has been living in fear and she has lost her sense of self-esteem.
    
17. I take 7 years imprisonment as the starting point of your sentence. I add 4 years bringing an interim total of 11 years imprisonment. Since the personal circumstances and family background of the accused has little mitigatory value, however, I find your good character has substantive mitigating value. I therefore reduce the sentence by 2 years.
    
18. I note from the submissions of the State that the accused was remanded for 9 days, however, the accused in his submission states he was in remand for 12 days. I exercise my discretion to reduce the sentence for the remand period by one month in accordance with section 24 of the Sentencing and Penalties Decree as a period of imprisonment already served. The final sentence is 8 years 11 months imprisonment.
    
19. Having considered section 4 (1) of the Sentencing and Penalties Decree and the serious nature of the offence committed on the victim compels me to state that the purpose of this sentence is to punish offenders to an extent and in a manner which is just in all the circumstances of the case and to deter offenders and other persons from committing offences of the same or similar nature.
    
20. Under section 18 (1) of the Sentencing and Penalties Decree, I impose 7 years as a non-parole period to be served before the accused is eligible for parole. I consider this non-parole period to be appropriate in the rehabilitation of the accused which is just in the circumstances of this case.
    
21. In summary the accused is sentenced to 8 years and 11 months imprisonment with a non-parole period of 7 years to be served before the accused is eligible for parole.
    
22. 30 days to appeal to the Court of Appeal.
    

Sunil Sharma
Judge

At Lautoka
29 December, 2016

Solicitors
Office of the Director of Public Prosecutions for the State.
M/S. S. S. Law for the Accused.