IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
Criminal Case No. HAC 30 of 2017

STATE

V

TAITUSI MANUCA
1st Accused

JONE COLATA
2nd Accused

Counsels:		Mrs. A. Vavadakua for the State
			Mr J. Korotini (L.A.C.) for the 1st Accused
			Ms. K. Boseiwaqa (L.A.C.) for the 2nd Accused

Date of Trial: 		30, 31, July, 01 August 2018
Date of Sentence:  	03 August 2018

SENTENCE

1.	After trial in this Court the first accused has been convicted of 	one count of rape and one count of sexual assault and the 	second accused has been convicted of 2 counts of rape. 

2.	The offences arose out of a night of heavy drinking on the 	garden island of Taveuni. The two accused met a Mr. and Mrs. 	B on one of the island beaches at about 7pm on the 7th July 	2017. Mr. and Mrs. B were recent arrivals on the island from 	New Zealand. The four drank together in a number of locations 	until at about 3am when they arrived at a pier known locally as 	Korean Wharf where they listened to music and the beers 	having run out, they shared a bottle of rum. 

3.	After about an hour Mrs. B felt exhausted and sat in the 	passenger seat of their vehicle with the door open. She fell 	asleep but awoke to find the 1st accused on top of her 	penetrating her while the 2nd accused stood outside egging him 	on. The 1st accused raped her and committed other sexual acts 	on her until he was finished. At that stage they changed places 	and the second accused raped Mrs. B with both his finger and 	penis. 

4.	While this was happening Mr. B was nowhere to be seen or 	heard. He returned subsequently in a dazed and confused State. 	Without realizing what had happened, he drove the 2 accused to 	the township and dropped them off. It was only then that his 	wife told him of her ordeal. 

5.	On medical examination a few hours later Mr. B. was found to 	have a fresh bloody injury on his head which the Doctor said 	would have been inflicted within the previous 12 hours and 	which was consistent with a blow by a blunt object.

6.	Circumstantial evidence suggests that he may have been 	incapacitated to allow free access to Mrs. B, but they are not 	charged with that and it cannot be used to their prejudice in 	sentence.

7.	The first accused is 26 years old and until arrest worked as a 	yaqona farmer on the island. He is married with a very young 	daughter. He submits that he still had nothing to do with these 	crimes which shows a distinct lack of remorse. 

8.	He has one previous conviction for theft in March 2017 for 	which he received a suspended sentence. It was while serving 	that sentence that he committed these crimes. He is also facing 	a charge in the Magistrates Court at Labasa for a crime 	committed while on bail for this case. 

9.	The second accused is 35, married with two children. His wife is 	the family breadwinner and he stays home and looks after the 	children and his wife’s parents. He was also farming on 	Taveuni. His wife and baby daughter both have medical 	problems for which they have to make quarterly visits to Suva. 

10.	The 2nd accused has never offended in the last 10 years and he 	will receive credit for that.

11.	Both accused served 4 months in custody before they were 	granted bail in this case. 

12.	The maximum sentence for rape is life imprisonment and ever 	since 1994 (Kasim AAU21/93) the starting point of a rape of an 	adult is 7 years imprisonment.

13.	There are however in this case a number of aggravating 	features.

14.	First the two accused took advantage of a woman who had been 	drinking to excess. A woman who has been drinking all night 	with men is not necessarily holding out the promise of sexual 	activity. The fact that she might be drunk increases the 	likelihood that she may not be in a position to give consent or 	not which increases the probability of recklessness in the 	element of consent. 

15.	Mr. and Mrs. B had been extremely hospitable to both accused 	all night supplying them with drinks and cigarettes and 	carrying them about in their vehicle. The men did not spend one 	cent towards the purchases of liquor and then to repay the 	couple with such abuse to Mrs. B. is appalling. 

16.	The sexual attack took place late at night when no one else was 	around a factor that would certainly have added to the stress 	felt by Mrs. B.  

17.	Mr. and Mrs. B were newcomers to the island and to Fijian 	culture and society and to assail the dignity of Mrs. B by these 	crimes would have a profound effect on how they would view 	their newly adopted community in the years to come. 

18.	For the offence of rape I take a starting point of 8 years. For the 	atrocious aggravating features referred to above I add a further 	six years to the starting point bringing the interim total to 14 	years imprisonment. 

First Accused

19.	The first accused has nothing to assist him by way of 	mitigation. He has no respect for authority by offending while on 	a suspended sentence and re-offending while on bail for this 	case. 

20.	For the time he has spent already on remand I deduct 4 months 	for the sentence, meaning he will serve a sentence of 13 years 	and 8 months for rape. 

21.	For the offence of sexual assault where there has been contact 	between the naked genitalia of the victim and the mouth of the 	accused, I sentence the accused to a term of imprisonment of 7 	years (following Abdul Kaiyum HAC 160/10). This term will be 	served concurrently with the term for rape. He is to serve a total 	term of 10 years before he is eligible for parole.

Second Accused 

22.	The second accused has the advantage of good behaviour for the 	last 10 years and he too has spent 4 months in custody 	awaiting trial. For that good behaviour and remand period I 	deduct 18 months which means that for each of the two rapes 	he has been convicted of he will serve a sentence 12 years and 6 	months imprisonment. Both terms will be served concurrently.  	He is to serve a term of 9 years before he is eligible for parole.

Summary

23.	Count One (Rape – first accused) 13years 8 months.
	Count 2 (Sexual Assault – first accused) 7 years, concurrent.
	Total for first accused 13 years 8 months with a minimum term 	of 10 years imprisonment.

24.	Count three (Rape -second accused) 12 years 6 months.
	Count Four (Rape – second accused) 12 years 6 months, 	concurrent.
	Total for second accused 12 years 6 months with a minimum 	term of 9 years.

		P. K. Madigan
		Judge

At Labasa
03 August 2018