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State v Yalimaiwai [2003] FJHC 171; HAC0011J.2003S (30 June 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 011 OF 2003S

STATE

-v-

BERA YALIMAIWAI

Counsel: Mr J. Waqaivolavola for State
Mr T. Fa for Accused

SENTENCE

Bera Yalimaiwai, you have pleaded guilty to and have been convicted of the following offence:

Statement of Offence

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

Particulars of Offence

BERA YALIMAIWAI, on the 24th day of November, 2001 at Wailoku in the Central Division, had unlawful carnal knowledge of a girl namely MELINI VASU without her consent.

The facts are that you were a minibus driver on the 24th of November 2001, and the complainant, a 19 year old girl, was a passenger in your minibus. When all the other passengers had left your minibus you took the complainant to an isolated spot in Wailoku and there had sexual intercourse with her without her consent. Before having sexual intercourse you also performed oral sex on her.

The medical report tendered by the State shows that there were bruises on the complainant’s vaginal area, and a vaginal swab showed positive results for spermatozoa. Under police caution you confessed to the rape saying that both you and the complainant had consumed rum and coke that night.

You are 33 years old, married with 2 children. You are still working as a minibus driver.

The starting point for the rape of an adult in Fiji is 7 years imprisonment. Although local cases have resulted in sentences which range from 4 years imprisonment to 11 years imprisonment, the Fiji Court of Appeal in Mohammed Kasim –v- State Crim. App. No. 21 of 1993 said that the starting point must be 7 years imprisonment where the victim is an adult.

The mitigating factors in this case are that you have pleaded guilty thereby saving the victim the trauma of giving evidence, and that you have no previous convictions. Also in your favour is that you have expressed remorse both to the police and to this court. I reduce your sentence to 5 years imprisonment to reflect these factors.

The aggravating factors are that the complainant was only 19 years old, and that as the driver of a minibus you are in a position of trust and responsibility in relation to those members of the public who sit in your vehicle. Women should be able to feel safe in public service vehicles. Your breach of this trust leads to public loss of trust in public service vehicle drivers. Further the performance of oral sex is an aggravating feature of the case. To reflect these matters I increase the sentence by 2 years. I arrive at a sentence of 7 years imprisonment.

You are therefore sentenced to a term of 7 years imprisonment to run from today.

Nazhat Shameem
JUDGE

At Suva
30th June 2003