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State v Gabriel - Sentence [2019] FJHC 740; HAC63.2017 (26 July 2019)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 63 of 2017

STATE

V

VILIAME MARTIN GABRIEL

Counsel : Mr. S. Babitu for the State.

: Ms. K. Vulimainadave for the Accused.

Date of Hearing : 11 July, 2019
Closing Speeches : 12 July, 2019
Date of Summing Up : 15 July, 2019
Date of Judgment : 16 July, 2019
Date of Sentence : 26 July, 2019

SENTENCE

1. In a judgment delivered on 16^th July, 2019 this court found the accused guilty for one count of sexual assault and one count of attempted rape.

The brief facts were as follows:

2. On 15^th October, 2015 the victim after work went and joined her husband and two of his friends for drinks at the Bowling Club, after sometime all went to the Hunters Inn for more drinks. At around 10 or 11pm the accused joined them, after the Hunters Inn closed one carton of beer was bought and all went to drink at the FSC compound by the time this carton of beer finished it was only the victim, her husband and the accused who were left. After buying another carton of beer all went to the seawall to continue drinking, since the victim was drunk she stopped drinking at the seawall. Since it was daylight the accused suggested that they go to an Apartment nearby.
   
3. At the Apartment the victim’s husband Kitione said the price of the room was expensive and that they should call it a day. The accused told Kitione to go to the main road to get a taxi after Kitione left the accused held the hand of the victim and took her into a room, since she was sleepy and upon seeing a bed the victim went and laid on it. Shortly after, the victim felt someone turn her over since she was lying face down. After the victim was turned over she felt her under garments being removed and her vagina licked for about 2 minutes.
   
4. The victim did not do anything since she thought it was her husband so she did not open her eyes. After this she was turned over and this person was trying to penetrate her anus with his penis she felt a lot of pain as a result of what was being done to her. The victim woke up and saw it was the accused so she pushed him away. The victim did not consent to the accused to penetrate her anus with his penis or lick her vagina.
   

5. The matter was later reported to the police the accused was charged and produced in court.
6. Both counsel filed helpful written submission for which this court is grateful.

7. Counsel for the accused presented the following personal details and mitigation on behalf of the accused:

(a) The accused is 46 years of age;
(b) First Offender;
(c) Married with 4 children;
(d) He is employed as a clerk/driver;
(e) Seeks the court’s mercy and leniency;
(f) Sole bread winner of the family.

8. I accept in accordance with the Supreme Court decision in Anand Abhay Raj v the State, CAV 003 of 2014 that the personal circumstances of an accused person has little mitigatory value in cases of sexual nature.

9. The aggravating factors are:

(a) Breach of Trust

The victim’s husband had left the victim in the care of the accused when he went looking for a taxi to take the victim home. The victim was drunk at the time and the accused knew and took advantage of this. The accused also knew that the victim was vulnerable due to her state of intoxication and that she was alone. In this case there has been a gross breach of trust by the accused.

(b) Planning

This is some degree of planning by the accused since it was his suggestion that they all go to the nearby Apartment. Furthermore, the accused had sent the victim’s husband to get a taxi and then he went on to secure a room in the Apartment and then took the victim into the room by holding her hand shows planning on the part of the accused.

(c) Victim Impact Statement

According to the victim impact statement after the incident the victim started having problems in her married life whenever she had arguments her husband he would bring this case up and blame her for the incident. The victim still feels traumatized by the incident.

10. The maximum punishment for the offence of sexual assault and attempt to commit rape is 10 years imprisonment respectively.
    

11. Section 17 of the Sentencing and Penalties Act states:

“If an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences that does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each of them.”

12. The tariff for the offence of attempt to commit rape is well established which ranges from 1 year to 5 years imprisonment. In Jioji Aunima vs. The State, criminal appeal no. HAA 033 of 2001 (27 June 2001) Shameem J. stated:-
    

“Applying all these principles, I find that the accepted tariff for Attempted Rape in the Fiji Courts ranges from 12 months imprisonment to 5 years imprisonment. A starting point should then be chosen according to the seriousness of the offending.

13. In Rusiate Bulimaiwai vs. The State, criminal appeal no. HAA 0068 of 2005, Shameem J. mentioned the various factors which would result in higher sentences as follows:
    

“... In Joji Aunima v. State, criminal appeal HAA 033 of 2001, I identified the tariff for attempted rape as being 12 months imprisonment to 5 years imprisonment. Sentences at the upper end of the tariff should be imposed where gratuitous violence is inflicted, where a weapon is used, where there is a gross breach of trust or where there is a large age gap between the complainant and the offender. In Hari Chand v State (supra) I upheld a 3 year term for the attempted rape of his daughter-in-law by the offender. There was no gratuitous violence but there was a gross breach of trust.”

STARTING POINT

14. In selecting a starting point I am guided by the Court of Appeal in Laisiasa Koroivuki v The State, criminal appeal no. AAU0018 of 2010 at paragraphs 26 and 27 the following is stated:
    

“[26] The purpose of tariff in sentencing is to maintain uniformity in sentences. Uniformity in sentences is a reflection of equality before the law. Offender committing similar offences should know that punishments are even handedly given in similar cases when punishments are even-handedly given to the offenders, the public’s confidence in the criminal justice system is maintained.

[27] 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 stage. 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.

15. Considering the seriousness of the offending I select a starting point of 2 ½ years imprisonment at the lower range of the tariff. I add 3 years for the aggravating factors bringing an interim total of 5½ years imprisonment. Since the personal circumstances and family background of the accused has little mitigatory value, however, I find the accused good character has substantive mitigating value. I therefore reduce the sentence by 1½ years for mitigation and good character bringing the sentence to 4 years imprisonment.
    
16. From the court record I note that the accused was remanded for one month and 12 days in exercise of my discretion I further reduce the sentence by one month and 15 days as a term of imprisonment already served. The final sentence is now 3 years 10 months and 15 days.
    
17. Having considered section 4 (1) of Sentencing and Penalties Act and the serious nature of the offence committed on the victim compels me to state that the purpose of this sentence is to punish offenders to an extent and in a manner which is just in all the circumstances of the case and to deter offenders and other persons from committing offences of the same or similar nature.
    
18. Under section 18 (1) of the Sentencing and Penalties Act I impose 2 ½ years imprisonment as a non-parole period to be served before the accused is eligible for parole. I consider this non-parole period to be appropriate in the rehabilitation of the offender which is just in the circumstances of this case.
    
19. In summary the accused is sentenced to 3 years 10 months and 15 days imprisonment with a non-parole period of 2 ½ years to be served before the accused is eligible for parole.
    
20. 30 days to appeal to Court of Appeal.
    

Sunil Sharma
Judge

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