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State v Tubuduadua - Sentence [2016] FJHC 80; HAC083.2013 (10 February 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 083 OF 2013

STATE

Vs

SEMI TUBUDUADUA

Counsels : Mr M Vosawale and Ms L Bogitini for the State

Mr Ravuniwa for the Accused

Dates of Trial : 1st – 3rd February 2016

Summing Up : 5th February 2016

Judgment : 8th February 2016

Sentence : 10th February 2016

SENTENCE

[1] Mr. Semi Tabuduadua, after being convicted to a count of Rape, contrary to Section 207(1),(2)(b) 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 the above charge. During the ensuing trial the complainant, one of her daughters and her partner gave evidence for Prosecution, while you and another offered evidence for the Defence.

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

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

(i) The complainant is your brother's partner for 13 years and is a mother of three children. You are an adopted child but the family treated you as one of their own.

(ii) On 16th February 2013, your family members had gathered in the main house as it was customary for them every Friday evening. They were drinking beer. You and the complainant also consumed beer and the complainant invited you to accompany her to a night club to meet her brother. You declined the invitation.

(iii) When the complainant was asleep in a room with its door kept open you penetrated your finger into her vagina after touching several parts of her body. When she moved her body and twitched you said to her ear "not to worry, it's OK don't worry. Just me". She recognised you by your voice.

[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 well settled since the Judgment of Justice Gates (as he was then) in State v Marawa [2004] FJHC 338. The starting point of imprisonment for Rape of an adult is 7 years. The tariff is between 7 years to 15 years.

[7] In Mohamed Kasim v The State (unreported) Fiji Court of Appeal 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."

[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, in the light of the above guiding principles, I commence your sentence at 7 years of imprisonment for the count of Rape.

[10] The aggravating factors are:

(i) Breach of trust the victim had towards you as her brother in law;

(ii) Opportunistic planning;

(iii) You have taken advantage of the victim's vulnerability as she was under a state of intoxication;

(iv) The complainant was emotionally traumatised and felt insecure;

[11] I add 3 years for the above aggravating factors. Now your sentence is 10 years.

[12] The mitigating factors are:

(i) You are a first offender as conceded by the State;
(ii) You are a 21 year old person and father of two very young children;
(iii) Your previous good character;
(iv) When you committed the offence you were 18 years old and 13 years younger than the complainant,
(v) You say that you are remorseful and and is sorry for what you have done.

[13] I deduct 3 years for the above mitigating factors. Now the sentence is 7 years.

[14] You were in remand for this case for two weeks.

[15] I deduct the two week period from your period of imprisonment. Your final sentence is therefore 6 years 11 months and 2 weeks of imprisonment.

[16] Considering Section 18 (1) of the Sentencing and Penalties Decree, and the unreported judgment of the Court of Appeal in Tora v The State Crim. App. AAU 0063/2011, I impose a 5 year non- parole period on the sentence, and thereby encouraging you to reform yourself.

[17] Your sentence is as follows:

(i) Count of Rape - 6 years 11 months and 2 weeks of imprisonment

Summary

[18] You are sentenced to 6 years 11 months and 2 weeks of imprisonment. You will not be eligible for parole until you complete serving 5 years of your term of imprisonment.

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

AchalaWengappuli
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.

Solicitor for the Accused : Legal Aid Commission, Suva.