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State v Tamaitinana - Sentence [2021] FJHC 227; HAC127.2018 (15 June 2021)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 127 of 2018

STATE

V

VONOLAGI TAMAITINANA

Counsel : Mr. T. Tuenuku for the State.

: Ms. S. Ali for the Accused.

Dates of Hearing : 31 March, 01, 06, 07 April, 2021
Closing Speeches : 08 April, 2021
Date of Judgment : 08 April, 2021
Date of Sentence : 15 June, 2021

SENTENCE

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

1. In a judgment delivered on 8^th April, 2021 this court found the accused guilty and convicted him for one count of sexual assault, two counts of rape and one count of assault causing actual bodily harm.
   
2. The brief facts were as follows:
   

On 13^th June, 2018 the victim (18 years of age), after school was waiting for her bus at Rakiraki Town to go home when she was offered a ride home in the car driven by her friend Maki. In the car Maki was accompanied by the accused and another person. On the way to the village the victim was offered beer to drink she refused at first but later started to drink. Before reaching her village the victim got drunk so she did not want to go home since she was scared of her mother.

3. Thereafter, the victim was joined by her friends Adi and Thelma in the car after visiting a few places to drink they all went to the house of the accused at Wairuku to sleep.
   
4. The victim did not go to school the next day but continued to drink with the accused and her friends by going to some places in the car driven by Maki. In the afternoon the victim, the accused, and her friends went to the house of Maki’s father at Nauria village.
   
5. The victim and the two girls went inside the house, after a while the accused called the victim in the porch of the house where he was seated with some others from the village. The victim was frightened of the accused because of the way he was talking to her.
   
6. She went and sat beside the accused it was at this time the accused punched her with his left hand on her left eye. The victim felt her left eye go numb in the evening when the victim went to sleep in the living room the accused came and laid beside her on the mattress. The victim started to cry because she was scared of the accused.
   
7. The accused forcefully started hugging and touching her breast and then told her to take off her clothes. When she refused the accused went on top of her and forcefully removed her shorts, panty and t-shirt.
   
8. The victim told the accused that she was scared of him and that he was drunk but the accused told her to keep quiet and then he started touching her vagina and then lifted both her legs and put it on his shoulders.
   
9. The accused started to lick the victim’s vagina, she felt his tongue inside her vagina he then wanted to have sexual intercourse after she refused the accused forced himself on her and then penetrated his penis into her vagina. The victim told the accused not to do this to her and then she again started to cry since it was painful. The accused had sexual intercourse for about 15 minutes.
   
10. The victim did not consent to what the accused had done to her. The matter was later reported to the police the victim was taken to the hospital her medical report showed laceration at 6 o’clock position at the bottom end of the vagina and a black eye amongst other injuries. The accused was arrested and charged.
    
11. Both counsel filed written submissions, victim impact statement and mitigation for which this court is grateful.
12. The following personal details and mitigation was submitted by the counsel for the accused:
    1. The accused was 28 years of age at the time of the offending;
    2. Cooperated with police during investigations;
    100. Is separated from his partner and they had an 11 year old son who died recently.

13. I accept in accordance with the Supreme Court decision in Anand Abhay Raj –vs.- The State, CAV 0003 of 2014 (20 August, 2014) that the personal circumstances of an accused person has little mitigatory value in cases of sexual nature.

AGGRAVATING FACTORS

14. The following aggravating factors are obvious in this case:

1. Breach of Trust

The victim and the accused had met a day before the incidents and basically became an acquaintance. The victim trusted the accused that she stayed at his house on the first night and then the next day she went with the accused to Maki’s house at Nauria. The accused breached the trust of the victim by what he did to her.

2. Victim was alone and vulnerable
   

The victim was vulnerable, helpless and unsuspecting and more so after the assault she had become scared of the accused. The accused took advantage of this and sexually abused the victim. There is also some degree of planning by the accused he knew the victim was scared of him and was alone in the living room.

100. Victim Impact Statement

In the victim impact statement the victim states that after the incidents she blames herself for what has happened despite counseling by her mother.

TARIFF

15. The maximum penalty for the offence of rape is life imprisonment and the accepted tariff for the rape of an adult is a sentence between 7 years to 15 years imprisonment.
16. 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.”

17. 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.”

18. I am satisfied that the four offences for which the accused stands convicted are offences founded on the same facts and are of similar character. Therefore taking into account section 17 of the Sentencing and Penalties Act I prefer to impose an aggregate sentence of imprisonment for all the four offences.
    
19. Bearing in mind the objective seriousness of the offences committed I take 7 years imprisonment (lower range of the scale) as the starting point of the aggregate sentence. I add 5 years for the aggravating factors, bringing an interim total of 12 years imprisonment. The accused has eight previous convictions for unrelated matters hence I am prepared to consider the accused as a first offender. The personal circumstances and family background of the accused has little mitigatory value, however, since I have accepted the accused as a first offender I therefore reduce the sentence by 1 year for good character and mitigation. The aggregate sentence now is 11 years imprisonment.
    
20. I note the accused has been in remand for about 6 months and 12 days, the sentence is further reduced in accordance with section 24 of the Sentencing and Penalties Act as a period of imprisonment already served.
    
21. Under the aggregate sentencing regime of section 17 of the Sentencing and Penalties Act the final sentence of imprisonment for one count of sexual assault, two counts of rape and one count of assault causing actual bodily harm is 10 years and 5 months and 18 days imprisonment.
    
22. 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.
    
23. Under section 18 (1) of the Sentencing and Penalties Act, I impose 9 years 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 accused which is just in the circumstances of this case.
    
24. Mr. Tamaitinana you have committed serious offences against the victim who had trusted you. I am sure it will be difficult for her to forget what you had done to her. Your actions towards the victim were deplorable and selfish. 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 is emotionally and psychologically affected by the incidents.
    
25. I am satisfied that the term of 10 years and 5 months and 18 days imprisonment 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 offence.
26. In summary I pass an aggregate sentence of 10 years and 5 months and 18 days imprisonment for one count of sexual assault, two counts of rape and one count of assault causing actual bodily harm that the accused has been convicted of with a non-parole period of 9 years to be served before he is eligible for parole.
    
27. 30 days to appeal to the Court of Appeal.
    

Sunil Sharma

Judge

At Lautoka
15 June, 2021

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