Home | Databases | WorldLII | Search | Feedback High Court of Fiji

  Download original PDF

State v Vakaloloma - Sentence [2020] FJHC 409; HAC74.2016 (8 June 2020)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
Criminal Case No.: HAC 74 of 2016

STATE

V

1. TOMASI VAKALOLOMA
2. SAVENACA VALU
3. WATISONI BARO
4. TEVITA GUSUDRADRA
   

Counsel : Ms. L. Bogitini for the State.

: Mr. T. Varinava for the first Accused.

Ms. V. Narara for the second Accused.

Ms. J. Manueli for the third Accused.

Ms. E. Radrole for the fourth Accused.

Dates of Hearing : 16, 17, 18 March, 2020
Closing Speeches : 18 March, 2020
Date of Summing Up : 19 March, 2020
Date of Judgment : 27 April, 2020
Date of Sentence : 08 June, 2020
________________________________________________________________________________

SENTENCE

(The name of the victim is suppressed she will be referred to as “DV”)

1. In a judgment delivered on 27 April, 2020 this court found all the accused persons guilty and convicted them as follows:
   

(a) The first, second and third accused persons for the offence of rape;

(b) The first and second accused persons for the offence of assault with intent to commit rape;

(c) The fourth accused for the offence of attempt to commit rape.

2. The brief facts were as follows:

On 3^rd March, 2016 the victim at about 7pm went to the Deep Sea Nightclub to listen to music. In the nightclub the victim saw all the four accused persons drinking at a different table, she knows all the accused persons since she was living in their village.

3. The nightclub closed at 1.00 am the next day, whilst standing outside the nightclub, the first accused Tomasi came in a 7 seater van and asked the victim to get in and that they will drop her home.
   
4. The first accused was with all the three accused persons and Tevita’s cousin Namoumou. The van was driven past the Sigatoka Hospital into a gravel road and up a hill. When the van went into the gravel road, the victim asked Tomasi where they were going to. Tomasi replied that they were going to drink half bottle of gin before going home.
   
5. At the hill, the four accused persons and Tevita’s cousin Namoumou started drinking the half bottle of gin, by this time it was about 2.30 am. The victim drank three nips in the bottle cap.
   
6. After a while Tomasi and the victim left the group and walked down the road, as they were walking Tomasi told the victim to hide since Namoumou was coming.
   
7. After sometime Savenaca came to where the victim and Tomasi were hiding. When Savenaca came, he started yelling and asking Tomasi if he had sex with the victim. At this time, Tomasi pushed the victim on the grass with both his hands making the victim lie on her back.
   
8. The victim tried to push Tomasi away and was struggling with him, at this time Savenaca started to pull both her legs, the victim continued to struggle with Savenaca who then punched victim on her right chin and removed her ¾ pants and underwear.
   
9. Tomasi after removing his ¾ pants and undergarments came on top of the victim and inserted his penis into her vagina and had forceful sexual intercourse with her for about 2 to 3 minutes.
   
10. After Tomasi had finished, Watisoni came and removed his pants the victim tried to stop Watisoni by screaming at him to stop and was trying to fight back and get up, however, Watisoni came on top of her and was able to insert his penis into her vagina and had forceful sexual intercourse with her for about 3 minutes.
    
11. After Watisoni had finished, Savenaca came on top of the victim after removing his pants and undergarments he inserted his penis into the victim’s vagina and had forceful sexual intercourse for about 2 to 3 minutes. The victim was crying and lying down but the accused did not care and had sexual intercourse with her.
    
12. The victim did not consent to have sexual intercourse with any of the accused persons.
    
13. Savenaca then called out to Tevita who was standing at a short distance to come over. Tevita came, removed his pants came on top of the victim and tried to have sexual intercourse with her. The victim was crying and telling Tevita to stop otherwise she will tell the police. Tevita could not insert his penis into the victim’s vagina since she was moving and twisting.
    
14. After Tevita stopped, the victim stood up wore her pants and told Tevita that she was going to the police station to report the matter. The victim was crying and hurt. The victim walked with Namoumou to the Sigatoka Police Station and reported the matter to the police.
    
15. The state and defence counsel filed sentence and mitigation submissions including the victim impact statement for which this court is grateful.
    

16. The following personal details and mitigation have been presented by the counsel of all the accused persons:

FIRST ACCUSED
(a) The accused was 23 years of age at the time;
(b) First offender;
(c) Not married, a farmer and sole bread winner of his family;
(d) Looks after his elderly parents, his grandmother and his sister;
(e) Seeks the court’s mercy and leniency.

SECOND ACCUSED
(a) The accused was 29 years of age at the time;
(b) First offender;
(c) Not married;
(d) He is a farmer who resides with his family.

THIRD ACCUSED
(a) The accused is 28 years of age;
(b) First offender;
(c) Not married;
(d) Is a Farmer;

(e) His mother has remarried and he is looking after his sister who is undertaking tertiary education;
(f) Seeks the court’s leniency.

FOURTH ACCUSED
(a) The acused is 43 years of age;
(b) A first offender;
(c) A farmer;
(d) Married with a child who is 5 years of age;
(e) Sole breadwinner of the family.

17. I accept in accordance with the Supreme Court decision in Anand Abhay Raj vs. The State, CAV 0003 of 2014 that the personal circumstances and family background of an accused person has little mitigatory value in cases of sexual nature.

AGGRAVATING FACTORS

18. The aggravating factors are:

(a) Breach of Trust

The victim and all the accused persons were known to each other as friends and fellow villagers. The victim had accompanied the accused persons in the minivan to an isolated place since she had trusted them and was assured that she will be dropped home. The accused persons breached the trust of the victim by their actions. The victim was outnumbered by the four accused persons.

(b) Victim was alone and vulnerable

The victim was alone and vulnerable and all the accused persons took advantage of this. The victim was driven to an isolated spot away from the town.

(c) Victim Impact Statement

According to the victim impact statement the victim is embarrassed, hurt and affected by what the accused persons had done to her. The incident has changed her life she still carries with her the trauma of the incident.

19. This court accepts that no evidence was led in respect of the emotional and/or psychological effect on the victim. However the contents of the document cannot be ignored, it summarizes the harm suffered by the victim which was a direct result of what all the accused persons had done to her (see State vs. Afzal Khan, criminal case no. HAC 75 of 2016). The contents of the victim impact statement are credible and reliable and this court has no hesitation in relying on the victim impact statement filed.

20. The maximum penalty for the offence of rape is life imprisonment the accepted tariff for the rape of an adult is a sentence between 7 years to 15 years imprisonment.

21. In Mohammed Kasim v The State (unreported) Cr. Case No. 14 of 1993; 27 May 1994, the Court of Appeal had stated:

“We consider that at 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 the starting point.”

22. The first and the second accused also face a count each of assault with intent to commit rape. The maximum penalty for this offence is ten years imprisonment. The accepted tariff is from one year to four years imprisonment (see Jone Tabaka vs. State, criminal appeal no. HAA 05 of 2013).
    
23. The fourth accused faces a count of attempt to commit rape. The penalty for this offence is 10 years imprisonment. The tariff for this offence 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.

24. 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 victim 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.”

25. The first and the second accused have been convicted for one count of rape as well as one count each of assault with intent to commit rape. The third accused has also been convicted for one count of rape. For completeness, the first, second and the third accused are sentenced for the offence of rape first which is serious of the two offences.
    
26. Bearing in mind the objective seriousness of the offence committed I take 8 years imprisonment (lower end of the tariff) as the starting point of the sentence. I add 5 years for the aggravating factors, bringing an interim total of 13 years imprisonment.
    
27. Although the personal circumstances and family background of the accused persons have little mitigatory value, however, I accept their good character has substantive mitigating value. I further reduce the sentence by 1 year for good character and mitigation. The sentence is now 12 years imprisonment.
    
28. I note that the first, second and third accused persons have been in remand for about two months and 18 days. I exercise my discretion to further reduce the sentence for the remand period by three months in accordance with section 24 of the Sentencing and Penalties Act as a period of imprisonment already served. The final sentence of imprisonment for the first, second and the third accused persons for the offence of rape is 11 years and 9 months.
    
29. Rape not only affects the physical integrity of a victim, but violates the human dignity, leaving lifelong scars of psychological devastation bringing about a sense of self blame and hopelessness which does not heal easily even long after the physical injuries have healed.
    
30. Under section 18 (1) of the Sentencing and Penalties Act, I impose 9 years as a non-parole period to be served before the first, second and third accused persons are eligible for parole. I consider this non-parole period to be appropriate in the rehabilitation of the accused persons which is just in the circumstances of this case.
31. For the offence of assault with intent to commit rape the first and the second accused persons are sentenced to 2 years imprisonment each. Considering the rule on totality of sentencing and to avoid a crushing effect on the first and the second accused the sentence for the offence of assault with intent to commit rape is to be served concurrently with the offence of rape.
    
32. In respect of the fourth accused for the offence of attempt to commit rape I select a starting point of 2 years imprisonment at the lower range of the tariff. I add 3 ½ 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.
    
33. I note that the fourth accused was remanded for two months and 18 days in exercise of my discretion I further reduce the sentence by three months as a term of imprisonment already served. The final sentence for the fourth accused is now 3 years and 9 months for the offence of attempt to commit rape. Counsel for the fourth accused seeks a suspended sentence, in law this sentence cannot be suspended.
    
35. Under section 18 (1) of the Sentencing and Penalties Act, I impose 2 ½ years as a non-parole period to be served before the fourth accused is eligible for parole. I consider this non-parole period to be appropriate in the rehabilitation of the accused which is just in the circumstances of this case.
36. Having considered section 4 (1) of the Sentencing and Penalties Act and the serious nature of the offences 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.
    
37. All the accused persons have committed a serious offence against the victim who was a friend and a fellow villager. I am sure it will be difficult for her to forget what all the accused persons had done. You have not only brought shame to yourselves, but also to your family and your village, your actions can best be described as selfish and lustful for your sexual gratification you had no regard for the victim.
    
38. All of you took advantage of the victim’s vulnerability and the fact that she was alone. You cannot be forgiven for what you have done to the victim.
    
39. This court will be failing in its duty if a long term deterrent custodial sentence was not imposed. According to the victim impact statement the victim continues to be emotionally and psychologically affected by the incident.
    
40. In summary, I sentence the first, second and the third accused to 11 years and 9 months imprisonment for one count of rape each with a non-parole period of 9 years to be served before they are eligible for parole.
    
41. The first and second accused are also sentenced to 2 years imprisonment for the offence of assault with intent to commit rape to be served concurrently with the sentence of rape.
    
42. The fourth accused is sentenced to 3 years and 9 months imprisonment for the offence of attempt to commit rape with a non-parole period of 2 years and 6 months to be served before being eligible for parole.
    

43. 30 days to appeal to the Court of Appeal.

Sunil Sharma
Judge

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