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

State v Vaileba [2013] FJCA 116; AAU0075.2011 (1 November 2013)

IN THE COURT OF APPEAL, FIJI
APPELLATE JURISDICTION
CRIMINAL APPEAL NO. AAU0075 OF 2011

BETWEEN:

STATE
APPELLANT

AND:

JOSEFA VAILEBA
RESPONDENT

BEFORE : HON. JUSTICE P. MADIGAN

Ms. P. Madanavosa for State
Appellant in Person

Date of Hearing : 18th October, 2013
Date of Ruling : 1st November, 2013

JUDGMENT

[1] The appellant seeks leave to appeal a sentence passed on the respondent for rape by a Judge in the High Court at Lautoka on the 25th July 2011.

[2] The respondent was convicted after trial in that Court of one count of rape contrary to section 207(1) and (2)(a) of the Crimes Decree 2009. Four days later, he was sentenced to a term of imprisonment of four years without any minimum term being imposed.

[3] The brief facts of the case were that the accused and the victim both worked at a Resort near their village and had known each other for three months. The victim was 27 years old and the mother of two very young children living with her. The accused was 26 years old. On the 20th January 2011, the victim had dinner and went to bed at around 10.00 pm. Her two children were sleeping in the same room. At some stage in the night, the accused called from outside and on waking the victim asked her if he could sleep the night in her house because he was starting work early the next day. He came into the house but the victim refused him permission to stay because she was alone. The accused still inside closed the outside door and pulled the victim close to him, kissing her all over her face. He was drunk. He forcibly pushed her on to the bed, undressed himself and undid her sulu and forced her pants aside. He penetrated her first with his fingers and then with his penis. The act lasted for about three minutes. The victim was crying, managed to push him away and then stand up. The accused left and then from outside pleaded for forgiveness.

[4] In sentencing the accused, the learned Judge correctly identified the authority that dictates a term of at least seven years must be passed for a sentence of rape of an adult.

[5] The Judge, in adopting a starting point of seven years then went on to find that there were no aggravating features which would further enhance that term. He deducted three years from his total for good record, time in remand and family circumstances.

[6] Obviously there are aggravating features in this case such as night time unwelcome intrusion into the victim's home when drunk; use of some degree of violence to force her on to the bed and a sexual attack on a mother in the presence of her young children.

[7] By not adding time for aggravating features, the learned Judge arrived at a final sentence which was well outside the tariff for rape of an adult. The Judge did not say why he was sentencing outside the tariff.

[8] This appeal has a good chance of success and leave to appeal is granted to the State.

Paul K. Madigan
Justice of Appeal

At Suva
1 November 2013