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State v Balelala [2003] FJHC 229; HAM0047J.2003S (23 December 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAM0047 OF 2003

STATE

v.

SEREMAIA BALELALA

Counsel: Mr. N. Lajendra for State
Accused in Person

SENTENCE

You have been committed to the High Court for sentence on the ground that the trial Magistrate considered that the evidence of your character and antecedents showed that the facts called for a heavier sentence than he was empowered to give.

You are convicted of the following four offences:

FIRST COUNT

Statement of Offence

WRONGFUL CONFINEMENT: Contrary to Section 256 of the Penal Code, Act 17.

Particulars of Offence

SEREMAIA BALELALA, between the 11th day of July, 2002 and the 12th day of July, 2002 at Nasinu in the Central Division, wrongfully confined [THE COMPLAINANT].

SECOND COUNT

Statement of Offence

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

Particulars of Offence

SEREMAIA BALELALA, between the 11th day of July, 2002 and the 12th day of July, 2002 at Nasinu in the Central Division had carnal knowledge of [THE COMPLAINANT] without her consent.

THIRD COUNT

Statement of Offence

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

Particulars of Offence

SEREMAIA BALELALA, between the 11th day of July, 2002 and the 12th day of July, 2002 at Nasinu in the Central Division, had carnal knowledge of [THE COMPLAINANT] without her consent.

FOURTH COUNT

Statement of Offence

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

Particulars of Offence

SEREMAIA BALELALA, between the 11th day of July, 2002 and the 12th day of July, 2002 at Nasinu in the Central Division, had carnal knowledge of [THE COMPLAINANT] without her consent.

The facts of the case are that on the 11th of July 2002 you went to the Colo-i-Suva Forest Park carrying a cane-knife. There you saw the complainant, a tourist in Fiji who had gone there for a walk. You followed her, grabbed her from behind and dragged her to a place near one of the pools. There you raped her on three separate occasions during the night. You also performed oral sex on her, and kept her there by force all night, until 7.30am in the morning. You used your cane knife to force her into submission, on one occasion jabbing her in the side with it.

There was evidence that the victim was greatly distressed by the incident and that she received bruising and scratch marks all over her body as well as a bruise from the jabbing of the cane knife. A forensics report showed the presence of semen and sperm on the victim’s clothing as well as blood on her sulu.

Your list of previous convictions dates from 1974. In 1988 you were sentenced for 4 years imprisonment for rape. This was followed by a series of offences of robbery with violence, larceny, and assault. You have a history of escaping from lawful custody. Your last conviction was in 1998.

The tariff for rape in Fiji is 5 to 10 years imprisonment. The recommended starting point for the rape of an adult is 7 years imprisonment. The maximum sentence for wrongful confinement is 1 year's imprisonment or a fine of four hundred dollars.

Count 1

The State has urged me to impose the maximum sentence possible for this count, because of the length of the confinement, the motive for it and the use of a lethal weapon. I agree. A further reason to impose the maximum, is the fact that a tourist was so confined in a place specifically developed to encourage tourism. There are no compelling mitigating circumstances that might persuade me to impose a lesser sentence than 1 year's imprisonment.

You are sentenced to imprisonment for one year on Count 1.

Counts 2, 3 and 4

The confinement to commit rape would normally warrant a higher starting point than 7 years for the rape offences. However, in this case there is a separate count for the wrongful confinement offence, and I therefore start at 7 years imprisonment.

In your favour is the 1½ years you have already spent in custody awaiting trial and sentence. Although much of the delay was caused because the lower court was trying to assist you in getting legal representation, this is an unacceptable period of time to be held in remand. Further if you had been serving a term of imprisonment, you would have been entitled to remission for good conduct, which you are not entitled to in remand. I deduct 2 years to reflect the time you have spent in remand. I also take into account your family and personal circumstances, in particular your attempts to earn a living cutting grass, after your release from prison. I arrive at 4 years imprisonment. There are no other mitigating circumstances.

The aggravating factors are the use of the knife, the repeated rapes, the dragging of the victim, over a long trail at the Forest Park, the fact that the victim was a young and vulnerable tourist in a strange country with no family or friends, the commission of oral sexual intercourse, and the period of time over which the rapes were committed.

This is not the first time you have committed rape. In 1988 you committed another rape, also on a tourist and also with the use of a cane-knife. Clearly you have not learnt from your own past, and the 4 year term imposed on you then has not acted as a deterrent.

This court has a duty to protect the women and children of our community. This duty includes a duty to protect women who visit this country, who would like to believe that the people of Fiji are hospitable and law-abiding citizens. There is no evidence before me of the psychological effect of the rapes on this unfortunate victim. However her distress, from her evidence in the lower court, was apparent.

The aggravating factors in this case are considerable. To reflect them, I scale the sentence up by 6 years to a total of 10 years imprisonment on each count.

I must now consider the totality of the sentence. Clearly the rape sentences must be served concurrently, the total being excessive if served consecutively. However the sentence on Count 1 must be served consecutively. Firstly, I have not considered the confinement in the scaling of the rape charges. Secondly, I consider the wrongful confinement to be a separate serious offence for which you must serve a separate sentence. The sentence on Count 1 must be served consecutive to the sentences on Counts 2, 3 and 4. You must serve a total sentence of 11 years imprisonment. You may appeal against this sentence to the Court of Appeal, with the leave of the Court of Appeal, within 30 days.

Nazhat Shameem
JUDGE

At Suva
23rd December 2003