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State v Seniqai [2011] FJHC 375; HAC010.2011 (8 July 2011)

IN THE HIGH COURT OF FIJI
AT LABASA

CRIMINAL JURISDICTION

Criminal Case No: HAC 010 of 2011

STATE

v.

LAISENIA TABUIWALU SENIQAI

Counsel: Mr. M. Kaisamy for State
Mr. T. Lee for Accused

Date of Hearing: 5 – 6 July 2011
Date of Sentence: 8 July 2011

SENTENCE

[1] Laisenia Tabuiwalu Seniqai, after a trial, you were convicted of rape of Sulueti Adi Bera. The rape occurred at Nagigi, Savusavu on 14 February 2011. You were charged on 18 February 2011. You have been in custody on remand since that date.

[2] The facts are that the victim suffers from a condition known as delayed development. She is 26 years old. While she has grown up, her mind is more like a child. She is slow to respond but she can make rational decisions. She has three children. She is unmarried. She is being looked after by her elderly father after the death of her mother. According to her father, the men in their village have been sexually exploiting her due to her condition.

[3] On the evening of 14 February 2011, you entered the victim's home. She was alone with her children. Her father was attending a church function in the village. You pulled her away from her children and took her to another room. Her children were asleep at the time. You removed her clothes and raped her. The next morning, the victim complained to her father that you had raped her.

[4] You are 18 years old. Unfortunately, you are another unemployed youth without any meaningful purpose in life. You left school after completing Form 4. The International Convention on the Rights of a Child applies to you because of your age. I bear in mind that a prison sentence should be the last resort for a child.

[5] Rape is a serious offence. The maximum penalty for rape is life imprisonment. The starting point of rape of an adult victim is 7 years imprisonment (Mohammed Kasim v. State (1994) Cr. App. No.21 of 1993).

[6] I take into account the circumstances of the offence. You did not use any violence on the victim. She did not sustain any injury. There is no evidence that she suffers from any kind of trauma arising from the incident.

[7] However, the victim was a vulnerable person. You exploited her vulnerability. You knew she was alone at home and you knew she would not resist due to her condition. These factors aggravated the offence.

[8] The mitigating factors are compelling. You are a young and a first time offender. You come from a disadvantaged background. After you were found guilty, you expressed remorse through your counsel.

[9] I pick 7 years imprisonment as my starting point. I increase the sentence to 8 years imprisonment to reflect the aggravating factors. I reduce the sentence to 5 years imprisonment to reflect the mitigating factors and remand period.

[10] I sentence you to 5 years imprisonment. The purpose of your sentence is to denounce your offence and to deter you and others from committing this type of offence. Due to your youth I do not fix a non-parole period.

Daniel Goundar
JUDGE

At Labasa
Friday 8 July 2011

Solicitors:
Office of the Director of Public Prosecutions for State
Office of the Director of Legal Aid Commission for Accused