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State v Vuetikorovatu - Sentence [2022] FJHC 50; HAC143.2020 (10 February 2022)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 143 OF 2020

BETWEEN : STATE

AND : SOLOMONE VUETIKOROVATU

Counsel : Ms K Semisi for the State

Mr F Vosarogo for the Accused

Date of Hearing : 22 January – 26 January 2022
Date of Judgment : 31 January 2022
Date of Sentence : 10 February 2022

SENTENCE

[1] Following a trial, the Accused was convicted of digital rape of his 18-year old cousin.

[2] The incident occurred on 22 March 2020 at the Accused’s residence. At the time, the victim was staying with the Accused’s family and studying at USP. The victim is from Qamea, Cakaudrove.

[3] On the night of the incident, the Accused after drinking kava with his relatives, went inside his bedroom. By that time everyone else in the house had gone to sleep. He sent numerous messages to the victim through his Facebook account for her to bring a bottle of oil to his room. He complained to her that he was having stomach pains. At first she was reluctant to go to his room but when he called her twice on her mobile she went to his room with a bottle of oil out of concern for him.

[4] When she arrived at his room, he pulled her inside and pushed her on the mattress on the floor. He came on top of her. She resisted. Her wraparound sulu was undone and her pants was pulled down to her knees. She felt her panty was pulled to a side and his tongue penetrate her vulva for a second. She managed to push him to the side and leave the room. She immediately messaged her female cousin that the Accused had forced himself on her. Later that morning she complained to another female relative that the Accused had done something to her.

[5] There was some attempt made by the Accused’s family to resolve the matter internally, but after the victim received professional counselling she reported the incident to police.

[6] Rape is the most serious form of sexual violation of another person’s body. The court has a duty to send a clear message that any conduct that violates a person’s body and privacy will be severely punished. The main purpose of punishment is deterrence.

[7] In this case, the victim was a younger cousin of the Accused. He breached her trust. She was sexually violated in her home, a place where she should have felt safe. Although the penetration was fleeting, there was some degree of planning involved to lure the victim to the bedroom on the pretext of suffering from stomach pains. The victim was traumatized by the incident. When she reported the incident, attempts were made to downplay the incident to protect the Accused. These are serious aggravating factors.

[8] The Accused is 26 years old and a first time offender. At the time of the offence, he was 24. He is the youngest of three siblings. He is a student at FNU, studying Diploma in Civil Engineering. A conviction means that the Accused is facing a bleak future. But so is the victim.

[9] The Accused has spent 11 days in custody on remand. I incorporate this period in the discount for the mitigating factors.
[10] The Accused has exercised his right to a trial. I do not hold that against him.

[11] The Accused has offered apology to the victim and her family and seeks clemency from the court. The apology is late and I place little weight on it.

[12] The maximum punishment for rape is life imprisonment. The tariff is between 7 to 15 years imprisonment (Rokolaba v State [2018] FJSC 12; CAV0011.2017 (26 April 2018)).

[13] In Kasim v State [1994] FJCA 25; Aau0021j.93s (27 May 1994), the Court of Appeal said:

While it is undoubted that the gravity of rape cases will differ widely depending on all the circumstances, we think the time has come for this Court to give a clear guidance to the Courts in Fiji generally on this matter. We consider that in 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 that starting point.

[14] I do not assess the seriousness of the offence based on the nature of penetration. The seriousness of the actual conduct of the offender is gauged by the impact the conduct had on the victim regardless of the nature of penetration used.

[15] In Regina v Ismail [200e Times, March 7th 205, 205, Lord Woolf CJ said:

The fact that the present offence was oral rape did not mean that it was any less serious than vaginal or anal rape. It was true that there would be no risk of pregnancy in the case of oral rape, that was a relevant factor, but there were dangers in oral rape of sexually transmitted diseases, particularly when no protection was adopted by the assailant. In the court’s judgment, it could not be said that in approaching the question of sentencing any distinction should be made because of the category of rape. In some cases one would be more offensive than another to the victim. It was very much a subjective matter.

[16] In Ram v State [2015] FJSC 26; CAV12.2015 (23 October 2015) the Supreme Court made similar observations at [24]:

That is not to say there are no variations in the effect upon the victim depending on the particular penetration that has occurred whether by means of the penis, a finger, or a piece of wood. In Ismail&#16 Chhe Chief Justice emphasized the importance of Victim Impact Statements, a facility not always available in Fiji for resource reasons.

[17] I accept that that the penetration wasting, but the entire incidencident was long. The victim in her evidence said that she was traumatized by the incident.

[18] In the impact statement the victim had said that she was shocked and afraid when the incident occurred. She said that after the incident she is staying on her own, she feels socially withdrawn, she is having nightmares, some of her family members are not speaking with her and that she gets very emotional whenever she thinks of the incident.

[19] I pick 7 years imprisonment as my starting point. I add three years for the aggravating factors and reduce 2 years for the mitigating factors.

[20] The Accused is sentenced to 8 years’ imprisonment with a non-parole period of 5 years.

. ...........................................
Hon. Mr Justice Daniel Goundar
Solicitors:
Office of the Director of Public Prosecutions for the State
Vosarogo Lawyers for the Accused