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State v Colanaudolu - Sentence [2017] FJHC 384; HAC121.2016S (26 May 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 121 OF 2016S

STATE

vs

JOSUA COLANAUDOLU

Counsels : Mr. L. Burney and Ms. S. Lodhia for State
Mr. M. Fesaitu, Ms. L. David and Ms. S. Daunivesi for Accused
Hearings : 1 to 5, 9 to 12, 15 to 19, 22 and 23 May, 2017
Summing Up : 24 May, 2017
Judgment : 25 May, 2017
Sentence : 26 May, 2017

SENTENCE

1. In a judgment delivered yesterday, the court found you guilty and convicted you on the following counts in the following information:
   

SECOND COUNT

Statement of Offence

RAPE: Contrary to section 149 and 150 of the Penal Code [Cap 17].

Particulars of Offence

JOSUA COLANAUDOLU between the 1^st day of April 1998 and 31^st day of December 1999, at Navua in the Central Division, had unlawful carnal knowledge of A.A without her consent.

FOURTH COUNT

Statement of Offence

RAPE: Contrary to section 149 and 150 of the Penal Code [Cap 17].

Particulars of Offence

JOSUA COLANAUDOLU in February 2000 at Navua in the Central Division, had unlawful carnal knowledge of A. A without her consent.

SIXTH COUNT

Statement of Offence

RAPE: Contrary to section 149 and 150 of the Penal Code [Cap 17].

Particulars of Offence

JOSUA COLANAUDOLU between the 1^st day of June 2002 and 31^st day of July 2002, at Navua in the Central Division, had unlawful carnal knowledge of S. L. V without her consent.

SEVENTH COUNT

Statement of Offence

INDECENTLY ANNOYING FEMALES: Contrary to section 154(4) of the Penal Code [Cap 17].

Particulars of Offence

JOSUA COLANAUDOLU between the 1^st day of January 2004 and 31^st day of December 2004, at Navua in the Central Division, with intent to insult the modesty of S. L. V, exposed his naked penis to her, intending that his penis be seen by her.

EIGHTH COUNT

Statement of Offence

RAPE: Contrary to section 207(1) and (2)(a) of the Crimes Act 2009.

Particulars of Offence

JOSUA COLANAUDOLU on the 16^th day of November 2012, at Navua in the Central Division, had carnal knowledge of S. A. N without her consent.

NINTH COUNT

Statement of Offence

ABDUCTION: Contrary to section 282 (c) of the Crimes Act 2009.

Particulars of Offence

JOSUA COLANAUDOLU between the 13^th day of March 2016 and 14^th day of March 2016, at Navua in the Central Division, abducted MERE AILEVU MACEDRU in order to subject her to his unnatural lust.

TENTH COUNT

Statement of Offence

RAPE: Contrary to section 207(1) and (2)(a) of the Crimes Act 2009.

Particulars of Offence

JOSUA COLANAUDOLU between the 13^th day of March 2016 and 14^th day of March 2016, at Navua in the Central Division, had carnal knowledge of MERE AILEVU MACEDRU without her consent.

ELEVENTH COUNT

Statement of Offence

RAPE: Contrary to section 207(1) and (2)(a) of the Crimes Act 2009.

Particulars of Offence

JOSUA COLANAUDOLU between the 13^th day of March 2016 and 14^th day of March 2016, at Navua in the Central Division, penetrated the anus of MERE AILEVU MACEDRU with his penis without her consent.

TWELFTH COUNT

Statement of Offence

MURDER: Contrary to section 237 of the Crimes Act 2009.

Particulars of Offence

JOSUA COLANAUDOLU between the 13^th day of March 2016 and 14^th day of March 2016, at Navua in the Central Division, murdered MERE AILEVU MACEDRU.

2. Mr. Josua Colanaudolu, the facts of your case was very disturbing. Although you are from Verata, Tailevu, you spent the most of your life at Lepanoni and Vunibuabua Settlements. You grew up in that area and knew the people and families who grew up in the area. When you were young, you represented Fiji in judo at international events. This was a good start for you as a role model for the youths in the area. However, unbeknown to the members of your community, you began to use your sporting power to prey on young girls in the area.
   
3. Between the 1^st April 1998 and 31 December 1999, at the age of 22 years old, you attacked the first complainant (PW2), who was a 14 year old girl at the time. She was tiny, and you were bigger and stronger than her. PW2 was sent to the shop by her parents. You waited for her among the flower gardens. When she came near you, you forcefully grabbed her, gagged her and forcefully took her to your house. There you subdued her forcefully and raped her. You warned her not to report on the incident, or you will kill her.
   
4. You continually harassed PW2 until February 2000, and did the above incident to her 8 times. She was scared to report the matter until Mere Ailevu’s murder in 2016. Next you turned your attention on the second complainant (PW3). She was PW2’s elder sister. The sisters were your neighbour in the Vunibuabua/Lepanoni Settlement area. PW3 said sometimes between 1 June and 31 July 2002, she was breastfeeding her baby daughter in their family house. Her daughter was born on 30 May 2002. PW3 said, she was 20 years old at the time. You were 26 years old at the time.
   
5. PW3 said, her parents were sleeping in the sitting room. It was night time. You entered their house without their permission. You forcefully took PW3 outside the house. When she wanted to raise the alarm, you put a knife to her throat and warned her not to do so, or you will injure her parents or baby daughter. You took her to an outside dog house. You threw her in the dog house, forcefully took off her clothes and forcefully raped her for about an hour. You fled the scene because you were disturbed by another. PW3 was so scared to report the incident to the authorities, until the Mere Ailevu’s murder case arose.
   
6. Next you turned your attention on your niece, complainant no. 3 (PW4). PW4 was your elder brother’s daughter. On 16 November 2012, you tricked her that her father was looking for her. She was 18 years old at the time. You were 36 years old at the time. Instead of taking her to her father, your elder brother, you took her to the Deuba beach. At the beach, you forcefully subdued her and raped her for 20 minutes. She fainted as a result of the attack. You left her there, and fled the scene. All the above attacks on young women came to a head when you turned your attention on Mere Ailevu, a 14 year old girl. You were 39 years old at the time.
   
7. Throughout the 13 March 2016 (Sunday) you had been drinking liquor with friends. You worked from 8pm on 12 March 2016 (Saturday) to 5am 13 March 2016 at Hide Tide Bar in Deuba. On 13 March 2016, you went home to have your dinner. You felt asleep while having your dinner. After 10pm, you woke up and wandered to the village market. You saw Mere Ailevu at the market. You forcefully took her across the Queens Highway towards the Loloma Beach side. You later threw her over the fence. Then you assaulted her by elbowing her. You forcefully carried her to the beach and repeatedly raped her vaginally and anally. You later left her there and fled the scene. Mere was found dead on the beach on Monday, 14 March 2016 in the afternoon. She died as a result of massive brain injuries.
   
8. Parliament viewed the offence of murder as a serious one and had prescribed a mandatory sentence of life imprisonment (section 237 of the Crimes Act 2009). This is because the people of Fiji, through their representative in Parliament, viewed the unlawful taking of a person’s life as a serious matter, warranting a mandatory life imprisonment. However, Parliament had also given the courts, the power to fix a minimum term of imprisonment to be served, before the convict can apply to His Excellency the President of the Republic of Fiji for a pardon (section 119 of the 2013 Constitution of the Republic of Fiji).
   
9. Parliament also viewed the offence of rape, as a serious matter. They had prescribed a maximum sentence of life imprisonment. However, the courts had set the tariff for the rape of a child a sentence between 10 to 16 years imprisonment: Anand Abhay Raj v The State, Criminal Appeal CAV 0003 of 2014, Supreme Court of Fiji. For the rape of an adult, the tariff is a sentence between 7 to 15 years imprisonment: See Mohammed Kasim v The State, Criminal Appeal No. 21 of 1993, Fiji Court of Appeal; Bera Yalimaiwai v The State, Criminal Appeal No. AAU 0033 of 2003, Fiji Court of Appeal; Navuniani Koroi v The State, Criminal Appeal No. AAU 0037 of 2002, Fiji Court of Appeal and Viliame Tamani v The State, Criminal Appeal No. AAU 0025 of 2003, Fiji Court of Appeal. The final sentence will depend on the presence or otherwise of mitigating and/or aggravating factors.
   
10. “Abduction” carried a maximum sentence of 10 years imprisonment (section 282 (c) of the Crimes Act 2009).
    
11. “Indecently annoying females” carried a maximum sentence of one year imprisonment.
    
12. The aggravating factors in this case were as follows:
    • (i) Your behaviour from the time you were 22 years old when you attacked complainant no. 1 (PW2) in 1998 to when you raped and killed Mere Ailevu in 2016, a period of 18 years, showed the personality of a depraved character. In a sense, you were the height of evil for those young women complainants. In fact, you qualify as a serial rapist. You are the worst nightmare for any parent who has a daughter. You showed no regard to the rights of those young women. You showed no mercy to them when you bullied them and raped them. You showed no mercy to Mere Ailevu, when you raped and murdered her, at the aged of 39 years old. The fact that you had a young daughter yourself did not help. You must not complaint when the court gives you the same mercy you gave PW2, PW3, PW4 and Mere Ailevu.
      
    • (ii) By offending against the above female complainants, you had shown no regards to their rights as human beings and their right not to be harmed or abused. You had shown no regard to Mere Ailevu’s right to life.
      
    • (iii) Furthermore, through your offendings, you had shown no regards to the rights of the victims’ family. They have a right to see that members of their families are not harmed and abused by people like you. You have caused them heartaches and sadness.
      
    • (iv) You showed no remorse throughout the trial, even though you had a right to defend yourself according to law.
      
13. The mitigating factor I can only find one, that is, you had been remanded in custody for 1 year 2 months.
    
14. On count no. 12 (murder), I sentence you to the mandatory life imprisonment. Taking the factors mentioned in paragraph 12 and 13, I fix a minimum term of 30 years to be served before a pardon may be considered by His Excellency the President of the Republic of Fiji.
    
15. On count no. 2 (rape). I start with a sentence of 13 years imprisonment. I add 4 years for the aggravating factors, making a total of 17 years imprisonment. I deduct 2 years for the time spend in remand. Balance is 15 years imprisonment.
    
16. I repeat the above process and sentence for counts 4, 6, 8, 10 and 11 (all rape offences).
    
17. For count no. 9 (abduction), I sentence you to 5 years imprisonment.
    
18. For count no. 7 (indecently annoying females), I sentence you to 6 months imprisonment.
    
19. The summary of your sentences are as follows:
    • (i) Murder (Count no. 12) : Mandatory life imprisonment, with a minimum term of 30

years to be served, before a pardon may be considered

by His Excellency the President of the Republic of Fiji.

(ii) Rape (Count no. 2) : 15 years imprisonment, with a non-parole period of 14
years imprisonment.
(iii) Rape (Count no. 4) : 15 years imprisonment, with a non-parole period of 14
years imprisonment.
(iv) Rape (Count no. 6) : 15 years imprisonment, with a non-parole period of 14
years imprisonment.

(v) Rape (Count no. 8) : 15 years imprisonment, with a non-parole period of 14

years imprisonment.

(vi) Rape (Count no. 10) : 15 years imprisonment, with a non-parole period of 14

years imprisonment.

(vii) Rape (Count no. 11) : 15 years imprisonment, with a non-parole period of 14

years imprisonment.

(viii) Abduction (Count no. 9) : 5 years imprisonment.
(ix) Indecently Annoying

Females (Count no. 7) : 6 months imprisonment.

20. Because of the totality principle of sentencing, all the above sentences are made concurrent to each other, that is, a final sentence of mandatory life imprisonment, with a minimum term of 30 years to be served, before a pardon may be considered by His Excellency the President of the Republic of Fiji.
21. Mr. Josua Colanaudolu, for the rape and abuse of three young female complainants (PW2, PW3, PW4 and the abduction, rape and murder of Mere Ailevu, between the 1 April 1998 and 14 March 2016, I sentence you to the mandatory life imprisonment, with a minimum term of 30 years imprisonment to be served, before a pardon may be considered by His Excellency the President of the Republic of Fiji, effective forthwith.
    
22. Pursuant to section 4(1) of the Sentencing and Penalties Act 2009, the above sentence is designed to punish you in a manner which is just in all the circumstances, to deter other would-be offenders from preying on the young children of this country, who are the future of Fiji and to signify that the court and the community denounce what you did to the four female complainants between 1 April 1998 and 14 March 2016.
    
23. You have 30 days to appeal to the Court of Appeal.
    

Salesi Temo
JUDGE

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