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State v Baleikumi [2016] FJMC 172; Criminal Case 276.2009 (18 July 2016)

In The Magistrate’s Court
AT NAUSORI
CRIMINAL JURISDICTION

CRIMINAL CASE NO. CF 276 OF 2009

BETWEEN:

STATE

AND:

Vatiliai Baleikumi

Counsel:

DPPs Office - for the State

In Person and Mr. Vuki (Legal Aid) - for the Accused

SENTENCE

The accused, Vatiliai Baleikumi, is charged by the Director of Public Prosecutions on the following counts.

Statement of Offence

RAPE : Contrary to sections 149 and 150 of the Penal Code, Cap 17.

Particulars of Offence

Vatiliaiikumi on the 31^st day of May 2009, at Nausori inri in the Central Division, had unlawful carnal knowledge of a girl, namely M.V, without her consent.

The matter was heard and after a hearing the Court found you guilty and convicted you of the offence you are charged with. The Court had forwarded the file to the High Court for sentencing noting that the tariff for the offence was outside the tariff of sentencing of the Magistrate’s Court. The File was returned with orders that “Magistrate’s at Nausori to impose an appropriate sentence on the accused.”

You have been charged with rape. The relevant Law is Section 149 and 150 of the Penal Code.

149. Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm or by means of false representations to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of the felony termed rape .

150. Any perso como commits the offence of rape is liable to imprisonment for life, with or without corporal punishment.

The Tariff for rape of a child as the victim was 17 years old at the time of the offence. has been considered In the case of State v Cakau FJHC 141; HAC010.2010 (24 April) Fernando J highlighted the cases where Shameem J laid down the starting point for the rape of children and also the case of Drotini v The State (2006) FJCA 26; AAU0001.2005S (24 March 2006) where the FCA had confirmed the sentence of rape to 11 years. In v Caka Cakau the accuas sentenced to 11 years.

It is now well settled, and confirmed by the Supreme Court in Anand Abhay Raj CAV014 the tariff for rape of a juvenile0-16 ye16 year years' ars' imprisonment.
This Court takes a starting point of 11 years.

Now I consider the aggravating factors.

1. You entered the female public restroom at 6am.
2. You offered the victim money.

100. You have ruined the victim's future.

4. You had threatened the child victim.
5. The cruel manner in which you committed the offence.

Considering all aggravating factors, I increase your sentence by 2 years. Now your sentence is 13 years imprisonment.

Now I consider your mitigating circumstances.

1. You are 49 years old and were 42 at the time of the offending
2. Married with 2 children.
3. No previous record.
4. Realises mistake and seeking apology.
5. Period in remand.

Considering your mitigating circumstances and time spent in custody, I reduce your sentence by 3 years. Now your sentence is 10 years imprisonment.

Considering the future of the child and sending out the message to others in the society, I note Section 18(1) of the Sentencing and Penalties Decree and impose 9 years as non-parole term.

30 days to appeal.

Chaitanya Lakshman

Resident Magistrate

18^th July 2016