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State v Susu - Sentence [2019] FJHC 1010; HAC153.2016 (15 October 2019)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
[CRIMINAL JURISDICTION]

High Court Criminal Case No. HAC 153 of 2016

BETWEEN

STATE

AND

RATU APISAI SABANI SUSU

Counsel : Mr Seruvatu for the State
Ms Bilivalu for the Accused

Date of Plea : 01 May 2019
Date of Sentence : 15 October 2019

SENTENCE

1. Ratu Apisai Sabani Susu you pleaded guilty to one count of rape contrary to section 207(1) and (2)(a) of the Crimes Act 2009 and another count of common assault contrary to section 274 of the Crimes Act, 2009. The particulars of the offences read as follows;

First Count -

“Ratu Apisai Sabani Susu on the 04^th day of August 2016, at Nadi in the Western Division penetrated the vagina of Iva Mere Nacevu with his penis, without her consent.”

Second Count –

“Ratu Apisai Sabani Susu on the 4^th day of August 2016 at Nadi in the Western Division, unlawfully assaulted Iva Mere Nacevu.”

2. You were indicted on 28 September 2016. You initially pleaded not guilty to both counts. Three years later you informed the Court that you wish to change your plea and you pleaded guilty to both counts on 01 May 2019.
   
3. The complainant was your girlfriend. She was 21 years old and you were 26 years old at the time of the offences. On 04 August 2016 at about 7 am you arrived home with one of your cousins. You were already drunk, and you continued to drink with him. The complainant was lying down in the kitchen. At around 11 am you started shouting and the complainant went to a neighbour’s house. Then you called the complainant and when she came home you pushed her before locking the door. Your cousin left and you got hold of the complainant’s T shirt. You pulled her into a room and threw her on a bed. You forcefully removed her T shirt and the bra. You told her to remove her pants and when she refused, you forcefully removed her pants as well. You threatened to punch her if she doesn’t keep quiet. The complainant tried to stand up, but you pushed her back on the bed. You parted her legs and inserted your penis into her vagina. You left after having sexual intercourse, while the complainant was crying in the room. The matter was later reported to the Police and you admitted under caution that you committed the offences.
   
4. On 27 June 2019 you admitted the summary of facts and upon being satisfied of your unequivocal plea you were convicted for both counts.
   
5. You used violence and threats of violence in the course of committing the offences. You committed the offences whilst under the influence of alcohol. You violated the trust and security of the relationship you had with the complainant. I consider those as the aggravating factors in this case.
   
6. I have considered the mitigation submissions filed on your behalf.;
   1. You are now 29 years and in a de facto relationship.
   2. You have two very young children.
   100. You are the sole breadwinner of the family.
   4. You have no previous convictions.
   5. You have expressed remorse by pleading guilty.
   6. You have cooperated with the police.
      
7. You pleaded guilty before the trial stage. Rainima v State [2015] FJCA 17; AAU0022.2012 (27 February 2015) it was observed that;

“Pleas of guilty made at later stages than earliest opportunity cause more difficulties in the assessment of how much discount should be afforded to them. It is not for this Court to suggest an appropriate sliding scale because it must remain a matter of judicial discretion. We would however make three points very clear in this regard:

(i) A plea of guilty before trial must be afforded some<160;discount given iven that the cost of trial (including time and cost of assessors) is saved.
(ii) A plea of guilty at a later stage before a trial involving a vulnerable witness must be given a meaningful discount (say 20-25%) to recognize the fact that the vulnerable witness is not put through the ordeal of giving evidence.
(iii) A plea during trial after an accused has heard unshakeable evidence of a victim/complainant or after an inculpatory caution interview has been admitted into evidence is not deserving of any discount whatsoever.”

8. In Aitcheson V The State [2018] FJSC 29;CAV0012.2018 (2 November 2018) it was observed that;

“The one third discount may apply in less serious cases. In cases of abhorrence, or of many aggravating factors the discount must reduce, and in the worst cases shorten considerably.”