IN THE HIGH COURT OF FIJI
AT LABASA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO. HAC 08 OF 2017

BETWEEN:		THE STATE

AND:			MALAKI TUVALU
									
Counsel:	Mr R Kumar for the State
		Mr V Tuicolo for the Accused 

Date of Hearings:	    13 and 14 March 2018
Date of Summing Up:  15 March 2018
Date of Judgment:	   16 March 2018
Date of Sentence:	   16 March 2018

SENTENCE

[1]	Malaki Tuvalu, you stand convicted of rape, which is one of the most serious offences in the Crimes Act 2009.  The maximum penalty for rape is life imprisonment. There is no established tariff for rape of an adult victim but in Kasim v State [1994] FJCA25; Aau0021j.93s (27 May 1994), the Court of Appeal recommended a starting point of 7 years imprisonment. In that case the Court said:

While it is undoubted that the gravity of rape cases will differ widely depending on all the circumstances, we think the time has come for this Court to give a clear guidance to the Courts in Fiji generally on this matter. We consider that in 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 that starting point.

[2]	In Ram v State [2015] FJSC 26; CAV12.2015 (23 October 2015), the Supreme Court 	endorsed the following factors to be considered when sentencing for rape:

(a) whether the crime had been planned, or whether it was incidental   	     or opportunistic;

(b) whether there had been a breach of trust;

(c) whether committed alone;

(d) whether alcohol or drugs had been used to condition the victim;

(e) whether the victim was disabled, mentally or physically, or was      	     specially vulnerable as a child;

(f) whether the impact on the victim had been severe, traumatic, or 	  	     continuing;

(g) whether actual violence had been inflicted;

(h) whether  injuries or pain  had  been caused and  if  so how serious, 	     and were they potentially capable of giving rise to STD infections;

(i) whether  the  method of  penetration  was  dangerous  or  especially          	     abhorrent;

(j) whether  there had  been a  forced  entry  to  a  residence where  the 	     victim was present;

(k) whether  the  incident  was  sustained  over  a  long  period  such    	      as several hours;

(l) whether the incident had been especially degrading or humiliating;

(m) If a plea of guilty was tendered, how early had it been given. No 	     discount for plea after victim had to go into the witness box and be 	     cross-examined. Little discount, if at start of trial;

(n) Time spent in custody on remand.

(o) Extent of remorse and an evaluation of its genuineness;

(p) If  other  counts or  if  serving  another  sentence,  totality  of 		     appropriate sentence. (per Gates CJ)

[3]	The facts are that on 30 January 2017, you went to visit the victim on Kioa Island. 	The victim is your aunt. She also raised you like a son. She is about 62 years old, a 	widow and a grandmother. The incident occurred inside her home at around midnight. 	While she was asleep, you got on top of her and sexually penetrated her with your 	finger. She woke up in pain in her genitals and pushed you away. You humiliated her 	by asking her whether she was not interested in men after her husband had died.  She 	got up and rushed to her friend’s home about two houses away from her home in the 	middle of the night and in a distressed condition. The victim was so distressed that she 	could not come to terms with what you did to her. She told her friend that she did not 	like what you did to her. She complained to her adult children and reported the 	incident to police. Two days later she was medically examined. A visible abrasion 	was found on her vaginal wall.  

[4]	In presenting your mitigation, your counsel has informed the court that you are 55 years old and married with seven children. Two of your younger children are still in High School. You support your family by farming and working as a labourer. You also look after your elderly mother. The only significant mitigating factor is your previous good character for which I make a downward adjustment to your sentence.   

[5]	Your counsel has informed the court that you are remorseful and willing to seek forgiveness from the victim. Your expression of remorse has come too late.  For the victim there was no escape but to confront you in court and give evidence. Although no physical force or violence was used, the experience of being sexually violated by a family member was humiliating for the victim. The psychological impact of the crime was visible when the victim gave evidence. She sobbed during her testimony. 

[6]	I consider the following factors as aggravating to make an upward adjustment to the 	sentence:

•	Gross breach of trust.
•	Vulnerability of the victim due to old age and being a widow.
•	The victim was sexually abused in the security of her home 		and while she was asleep at night.  
•	Humiliating experience of the victim.

[7]	You have been in custody on remand for seven days. I make a downward adjustment to your sentence to reflect your remand period. 

[8]	Your punishment must reflect the court’s disapproval of your conduct. Women have 	the right to dignity and freedom from any form of sexual abuse. Rape is the worst 	form of sexual abuse. The impact of rape is felt on both the body and soul of the 	victim. Taking all these matters into account, I sentence you to 8 years’ imprisonment 	with a non-parole period of 5 years. 

							…………………………….. …….
							Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Director of Public Prosecutions for State
Office of the Director of Legal Aid Commission for Accused