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

State v Samoi [2010] FJHC 410; HAC093.2010S (6 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 093 OF 2010S

STATE

V

SAMU SAMOI

Counsels: Mr. W. Pillay for the State Ms. M. Savou for the Accused

Hearing: 9th July and 4th August 2010
Sentence: 6th August 2010

SENTENCE

1. Samu Samoi, on 9th July 2010, in the presence of your counsel, you pleaded guilty to the following charge:

Statement of Offence

ATTEMPTED RAPE: contrary to section 208 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

SAMU SAMOI, on the 24th day of April, 2010, at Wailoku in the Central Division, attempted to have carnal knowledge of SITERI DINAWAI, without her consent.

2. The prosecutor presented his summary of facts on 4th August 2010. Briefly, you and the complainant were neighbours in Wairua, Wailoku, Suva. On 23rd April 2010, you, the complainant and others attended a pre-wedding gathering at Tamavua-i-wai. Yagona was consumed during the gathering from 7pm to 12am. You and the complainant attended the yagona session. At 12am, you decided to go home, by taking the "short cut" through the mangrove to Wailoku. The complainant decided to go home, with you. She trusted that you wouldn't do anything untoward towards her.

3. While going through the "short cut", and with no-one around, you indicated to the complainant, aged 30 years plus, that you wanted to have sexual intercourse with her. She thought you were joking and she politely refused. You then attacked her by punching her repeatedly. You then dragged her to a nearby cassava plantation. You swore at her, and then punched her, and she became unconscious. You then forcefully took off her clothes, and licked her vagina. She suddenly regain consciousness and shouted for help. A person came to her aid, and you fled the scene. You admitted the above facts, in that you attempted to have unlawful sexual intercourse with the complainant, without her consent, and you knew she was not consenting at the time. As a result, the court found you guilty as charged, and convicted you accordingly.

4. You admitted your 10 pervious convictions, but I will only take into account your convictions in the last 10 years, and disregard the others, because they are more than 10 years old. I have noted your antecedent report, and the fact that you are 52 years old, married with three children. I have taken into account your written plea in mitigation.

5. "Attempted rape", contrary to section 208 of the Crimes Decree 2009, carried a maximum penalty of 10 years imprisonment. It is somewhat similar with the repealed section 151 (attempted rape) of the Penal Code, Chapter 17. Thus, the case laws for section 151 of the Penal Code will be relevant in interpreting section 208 of the Crimes Decree 2009. In Jioji Aunima v The State, Criminal Appeal No. HAA 033 of 2001, Her Ladyship Justice Shameem reviewed the case laws on attempted rape in Fiji. She concluded that the tariff for "attempted rape" in Fiji was a sentence between 12 months to 5 years imprisonment. Of course, the actual sentence passed will depend on the mitigating and aggravating factors.

6. In your case, the aggravating factors were as follows:

(i) you seriously breached your neighbour's trust in you, by accompanying her to her residence and family in Wailoku, and then attempting to rape her;

(ii) in committing the offence, you were extremely violent on her by punching, kicking, swearing and dragging her to a nearby cassava plantation, in order to commit the offence, on her;

(iii) you unlawfully knocked her unconscious with a punch, and committed degrading acts on her, by licking her vagina;

(iv) you simply showed no mercy on her, and caused her injuries, as itemized in her medical report.

7. The mitigating factors were as follows:

(i) You pleaded guilty to the offence, and therefore saved the court's time, as well as avoiding the need for the complainant to relive her ordeal in the courtroom, by giving evidence;

(ii) You are 52 years old, married with three children, and the sole breadwinner;

(iii) You've being remanded in custody for 3 months.

8. I start with a sentence of 3 years imprisonment. For the aggravating factors, I add 2 years prison, making a total of 5 years imprisonment. For the mitigating factors, I deduct 1½ years from the 5 years, leaving a balance of 3½ years prison. I sentence you to 3½ years imprisonment.

Salesi Temo
ACTING JUDGE

AT Suva
6th August, 2010