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State v Qalituigau - Sentence [2016] FJHC 784; HAC186.2015 (29 August 2016)

THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC186 OF 2015

STATE

vs

AKARIVA QALITUIGAU

Counsel : Mr R. Kumar and Ms U. Tamanikaiyaroi for the State
Ms T. Kean for the Accused

Hearing : 23^rd August – 24^th August 2016

Summing Up : 25^th August 2016

Judgment : 26^th August 2016

Sentence : 29^th August 2016

SENTENCE

[1] AKARIVA QALITUIGAU; after being convicted on single count of Rape, contrary to Section 207(1) and(2)(b) of the Crimes Decree No. 44 of 2009, you are to be sentenced by this Court.

[2] You pleaded not guilty to above charge. The ensuing trial lasted for 3days in this Court; during which, the complainant and her husband have given evidence for the prosecution while you offered evidence under oath.

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

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

(i) The complainant and others were drinking with you in her father’s house. You are a neighbour and having slept in that house several times before you were not considered by the complainant as a stranger.

(ii) After the drinking session was over, you opted to sleep in the house. The complainant’s husband went away with two other relatives. You, the complainant and several others were sleeping in the sitting room. When the complainant was sleeping you have removed her ¾ pants and licked “on and into” her vagina. She identified you and then ran out of the house after wearing her pants, got into a taxi, went to her husband and told what you have done.

(iii) They returned home after a while. Her husband, having asked you as to what you did, punched you and later handed you over to the Police.

[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 tariff for Rape of an adult is a term of imprisonment ranging from 7 years to 15 yearsas per Mohamed Kasim v The State(unreported) Fiji Court of Appeal Cr. Case No. 14 of 1993; of 27 May 1994,.

[7] Inthe same judgement, 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 The 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] Considering the nature of offending, in the light of the above guiding principles, I commence your sentence at 10 years of imprisonment for the count of Rape.

[10] The aggravating factors are:

a. Significant degree of opportunistic planning;

2. Taking advantage of the victim's vulnerability in her intoxicated state;

c. breach of trust as her guest.

[11] I add 3 years on the sentence on the above aggravating factors. Now your sentence is 13 years.

[12] The mitigating factorsare:

(i) You are a first offender;
(ii) You are a 26 year old construction worker who earns $ 180 a week;
(iii) You look after your elderly father and other family members.

[13] I deduct 2 years for the above mitigating factors. Now the sentence is 11 years.

[14] It is submitted that youwere in remand for this case for a total period of20 weeks.

[15] I deduct your 20 week long remand period from the sentence and now the head sentence is 10 years and 7 monthsfor the count of Rape.

[16] Considering Section 18 (1) of the Sentencing and Penalties Decree, I impose 8 years and 7 months of non-parole period.

[17] Your final sentences are as follows:

Head Sentence - 10 years and 7 months Non parole period - 8 years and 7 months

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

ACHALA WENGAPPULI
JUDGE

At Suva
This 29^th Day of August 2016

Solicitor for the State : Office of the Director of Public Prosecution, Suva

Solicitor for the Accused : Legal Aid Commission