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State v Lulu [2011] FJHC 210; HAC062.2010 (13 April 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC. 062 OF 2010

BETWEEN:

STATE
PROSECUTION

AND:

JOSATEKI LULU
ACCUSED PERSON

Counsel: State - Mr Daurewa & Ms. Lomani
Accused Person - Mr. S. Waqainabete

Date of Hearing: 21st, 22nd, 23rd, 24th, 28th, Feb and 3rd, 4th, 7th, 8th 9th, 10th, 14th, 15th, 16th, 17th March 2011.

Date of Summing Up: 18th March 2011.
Date of Sentence: 13th April, 2011.

SENTENCE

The accused Josateki Lulu has been found guilty and convicted for the offence of rape of Swastika Sharma.

The brief facts of the case were, that the victim Swastika Sharma met her boyfriend Pritesh on 12th March, 2010 after work, and they had an argument, after which Pritesh left. Then Swastika had few drinks with Vikash who was a friend of Pritesh and Vikash dropped her around 12.30am at her driveway to her home.

Then Swastika called Pritesh over the phone and was walking while talking to Pritesh over the phone, to get a taxi to go and meet Pritesh. At that point the accused dragged her to the grass area of the nearby ground, pushed her on to the ground, removed her clothes and forcefully raped her.

Rape is considered a very serious crime and the maximum punishment prescribed in law for the offence of Rape is life imprisonment.

The starting point for sentencing an adult in a rape case without aggravating or mitigating factors, should be a term of imprisonment of 7 years (Kasim v State [1994]] FJCA 25; AAU 0021 j.93S (27 May 1994)).

In Kasims' case the court said:

"While it is undoubted that the gravity of rape cases will differ widely depending on all the circumstances, we think the time has come for this Court to give a clear guidance to the Courts in Fiji generally on this matter. We consider that in any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment of seven years. It must be recognized by the Courts that the crime of rape has become altogether too frequent and that the sentences imposed by the Courts for that crime must more nearly reflect the understandable public outrage. We must stress, however, that the particular circumstances of a case will mean that there are cases where the proper sentence may be substantially higher or substantially lower than that starting point".

While endorsing the trend in Kasims' case, in Drotini v The State (2006) FJCA 26; AAU0001 2005S (24/March 2006) the court said that the sentencing court should not hesitate to increase the sentence substantially, when there are further aggravating factors.

The aggravating factors in this case are that, the accused used violence against the victim. It was evident that the accused dragged the victim to the ground, pushed her on the ground, pressed his hands on her mouth and then on her neck and raped her.

The force and violence used against the victim can be seen by the injuries which were confirmed by the medical report. She had abrasions all over the body, even grass on her breasts and abrasions around the vaginal opening according to the medical evidence. Therefore this is considered a rape with violence used against the victim.

In mitigation it was said on behalf of the accused, that he is 31 years old, married with one daughter aged 3 years, and an unborn baby who is due to be born in May 2011. He works for the Public Works Department and that he is the sole bread winner of the family. He is a first offender.

Considering the above, I take as starting point, a term of 7 years imprisonment.
For the aggravating factors mentioned above I add further 5 years.

For the mitigating factors mentioned above including that he is a first offender, I reduce 2 years making a total of 10 years imprisonment.

The accused has been on remand custody for this case from 17/3/2010 to 27/4/2010 and again after conviction from 18/3/2011 to 13/4/2011.

Acting in terms of Section 24 of the Sentencing and Penalties Decree 2009, I reduce further 2 months considering the period in remand custody.

Therefore final sentence for the accused is 9 years and 10 months imprisonment.

Considering the circumstances of the case, I make order that the accused should serve a minimum of 8 years imprisonment period, during which period he is not eligible to be released on parole.

Priyantha Fernando
JUDGE

At Suva
13th April, 2011.