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State v Waraimaivuna [2015] FJMC 82; Criminal Case 103.2012 (15 July 2015)

IN THE MAGISTRATE'S COURT AT SAVUSAVU
CRIMINAL JURISDICTION

Criminal Case No .103 of 2012

STATE

V

ILISAVANI WARAIMAIVUNA

Prosecution : CPL Rinesh Prasad
Accused : Mr Tagivakatini.R
Judgement : 15 July 2015

SENTENCE

1. The Accused, Ilisavani Waraimaivuna is charged with one count of Attempted to Commit Rape, contrary to section 208 of the Crimes Decree No. 44 of 2009.
   
2. The offence of Attempt to Commit Rape is an indictable offence that can be tried summarily, in other words, it is an electable offence where the Accused has the right to elect to be tried at the Magistrate Court or at the High Court. On 15 May 2012, the Accused elected to be tried at this Court.
   
3. The Accused on 6 September 2012, pleaded not guilty to the charge. The case was set for hearing on two occasions where it did not proceed as the hearing was vacated. The Accused who is represented by Legal Aid Commission on 19 February 2015, change his plea and pleaded guilty to the charge. I find the plea to be unequivocal. The Accused admitted the summary of facts on the same date and was convicted as charged.
   
4. The Defence Counsel filed the written mitigation on 23 February 2015.
   
5. The brief summary of facts is that on 12 May 2012, the Accused, 22 years old attempted to rape the victim a 9 years old girl, class 4, student of Ratu Emeri Catholic School. On the said date at about 1500 hours, the victim was at her home sewing her brother's pants when she heard someone knocking on their door. The victim stood up and opened the door and saw the Accused. The victim tried to run away from the Accused but could not. The Accused grabbed the victim and locked both of her hands. The Accused squeezed and grabbed on to the victim's neck when she tried to scream, the Accused forcefully shuts her mouth and forcefully pushed her down on the floor. The Accused took his pants and t-shirt off and was only wearing his tights on. The victim managed to scream out for help and was heard by her grandfather who was sleeping. The victim's grandfather stood up but the Accused did not release the victim but later released the Victim when he saw the victim's grandfather ran for his cane knife.
   
6. The Maximum penalty for attempt to commit rape is 10 years. The tariff is 12 months to 5 years imprisonment, set by Justice Shameem in Aunima v State [2001] FJHC 105 .
   
7. In this case, the starting point is 3 years imprisonment. I added 3 years for the following aggravating factors and increase the sentence to 6 years;
   
   1. Unlawful entry into the victim's house.
      
   2. Forceful act of locking the victim's hand, squeezing and grabbing the victim's neck, shutting the victim's mouth, and pushed her down to the floor.
      
   3. Accused took his pants and t-shirt off and only wearing his tights.
      
   4. He was drunk at the time of the offence.
      
   5. The victim who was 9 years old.
      

8. I reduce 1 year and 5 months for the guilty plea. The Accused pleaded guilty after vacation of two hearing date and therefore not entitle to the full one third reductions. That makes the final sentence to 4 years and 7 months.

9. I further reduce 2 years for the following mitigation, and that reduce the sentence to 2 years and 7 months;

i. First and young offender

ii. Remorseful and seek court forgiveness

iii. Promise not re-offend

10. I further reduce 21 days for the period in which the Accused was remanded and that reduce the sentence to 2 years, 6 months, and 10 days. The final sentence is 2 years, 6 months, and 10 days. This is a prevalent offence in Fiji and the victims and the vulnerable member of the public and our community as a whole need to be protected from people like the Accused.

11. In this case, suspended sentence is not an option as strong message needs to be sends out to people who intend to commit such offence. The imposing of immediate custodial sentence is given to act as a deterrent for those who intend to commit such offence in the future.

12. The Accused is now sentence to 2 years, 6 months, and 10 days imprisonment with a non-parole period of 2 years.

28 days to appeal.

Cama M. Tuberi
RESIDENT MAGISTRATE