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State v RSN [2011] FJHC 421; HAC146.2010 (5 August 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 146 of 2010

BETWEEN:

STATE
Prosecution

AND:

RSN
The Accused

Dates of Trial: 25-27 July 2011
Date of Summing-Up and Conviction: 29 July 2011
Date of S. Submissions: 01 August 2011
Date of Sentence: 05 August 2011

Ms L Vateitei for the State

Mr H A Sha for the Accused

Names of two victim-witnesses are suppressed and they will be referred to as MN and KK. The name of the accused-person is also suppressed and he will be referred to as RSN.

1. The accused stood charged on two counts of rape punishable under Sections 207 (1) (2) (a) and 207 (1) (2) (c) of the Crimes Decree No 44 of 2009. The two charges were sequel to acts of forcible vaginal penetration on MN and oral penetration on KK by the accused on 10 October 2010.
   
2. Evidence revealed that the two victims, aged 19 and 22 years respectively, were employees at a sales outlet at Nadi International Airport. They were waiting for a bus to go to work around 7.15 a.m. at Saweni off Lautoka on that day, which incidentally was a special holiday on account of the Fiji National Day.
   
3. As the two girls got tired of waiting due to scarcity of buses on the day, they found some solace in the lift offered by the accused who claimed that he too was going to the airport to pick-up someone and that he could drop them off.
   
4. MN got into the rear of the car first after responding to the accused's call for the lift followed by KK. KK also sat near MN while answering a call on her mobile, which she asserted to be one from her fiancé's. It was undisputed that they got into a conversation and exchanged names, details of families and places of work etc. as the accused drove towards Nadi.
   
5. The accused then invited KK to come and occupy the seat in the front by his side as they were approaching Vuda. The hesitance shown by KK to oblige appeared to have irked the accused, who in turn had taken a knife and threatened KK to comply. KK, having lost in her feelings of shock and confusion, made an attempt to undo the door-lock, which was manned through a central locking device of the car by the accused.
   
6. Thereafter, the accused drove the car, which admittedly had tinted shutters while holding the knife of 3-4 inches in length in his right hand. He stopped at a place off Vuda By-pass Road and got KK into the front seat on his left under threats of bodily harm and death.
   
7. The accused forced KK and MN to unbutton the top dress and when they refused, the accused endangered them with further threats. KK's response by opening only one of the buttons did not satisfy the accused's call and KK was eventually forced to unbutton a few more. The accused then started to touch her breast and fondle while steering the car with the right hand still holding the knife in it.
   
8. The accused did not go to the airport either to drop the two girls or to pick-up his passenger although he went past the turn-off to the Nadi International Airport. Instead, he took the girls under threat to an apartment off Namaka and ushered them to a room.
   
9. Influenced by an apparent desire to have threesome activity, the accused, then asked KK to dance inside the room, which was locked and curtained by him as he got in. Her refusal earned an imminent danger of injury again. She was consequently compelled to dance a little. While she was dancing, the accused wanted her to remove her top-dress. He then turned to MP and asked her to do the same. As she remained non-responsive, the accused threatened her, too, with death at knife point.
   

10. As MP was removing her top, the accused pushed her to the bed and took off her pair of pants, underpants and the brassiere. He then asked KK to suck his penis. As KK refused, the accused made her fellate after almost scratching her neck with the knife. The accused then turned to MP and had forcible sexual intercourse with her in a reverse missionary position. The attempt to have sexual intercourse on KK was shelved as he was told that she was menstruating.

11. The accused then left the apartment and took the two girls to the airport at Nadi, where they had wanted to go and dropped them off at the departure terminal, having continuously threatened them during the journey that the incidents should not be told to anyone saying that any defiance would follow deaths of the two.

12. It is in light of the evidence, as I summarized above, that the accused stands convicted after trial upon the two charges of rape. The offence of rape, in terms of Section 207 of the Crimes Decree, attracts a maximum punishment of imprisonment for life. The term of imprisonment until the exhaustion of one's life is a clear indication to show how serious the offence is looked at by the law. In addition to the severity that could be gauged in terms of the sentence, sexual offences by their very constitution are serious in nature because law recognises no exculpatory or mitigatory defences. Courts, time and again, have emphasized the requirement of deterrence in imposing sentences on convicts of rape.

13. In Kasim vs State [1994] FJCA 25, the Court of Appeal of Fiji laid down the principle that the sentence for the offence of rape on an adult should have the starting point of seven years of imprisonment. Their Lordships of the Court of Appeal further held that:

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.

(Emphasis mine)

14. While concurring with the above ruling, the Fiji Court of Appeal again held in Drotini v The State [2006] FJCA 26 that:

The continuing frequency of such cases has resulted in a general increase in the levels of sentences ordered in rape cases by the courts in Fiji. We endorse that trend. We do not suggest that the starting point described in Mohammed Kasim's case should be altered in rape cases in general but the sentencing court should not hesitate to increase the sentence substantially where there are further aggravating factors.

15. Kasim's case, therefore, in my opinion must be viewed as a good authority to impose an enhanced sentence well above the starting point where aggravating circumstances are proportionately present and also to impose a lesser sentence than the starting point where court finds extenuating circumstances to be present.

16. Accordingly, a sentence could range between 7-15 years on the basis of existing aggravating and mitigating circumstances (State vs Tuwai [2011] FJHC 287; State vs Loco [2010] FJHC 465; State v Balemaira [2010] FJHC 539 and State v Dekanivalagi and another [2011] FJHC 383.

17. In cases of Balemaira and Dekanivalagi, a starting point of seven years was taken where the victims were married women and final sentences of four years and six years with no-parole were imposed respectively. In the case of former, the victim was 31 years of age, while the victim in the latter case appears to be of the same age who was subjected to dreadful physical violence by the abettor. In Loco's case, a starting point of ten years was taken for the offence of rape on a married woman, having regard to the extent of gross indecency and a non-paroled term of ten years was imposed.

18. The upshot of these authorities is that judicial discretion in the matter of sentencing is meant to be used judiciously bearing in mind the jurisprudential underpinning of balancing the competing interests of the offender, the victim/s and the society at large as envisaged by Sections 4(1), 4(2) and 15 (3) of the Sentencing and Penalties Decree No 42 of 2009. What is important to be borne in mind is that in as much as court could ascend from the starting point it can equally descend substantially on the basis of extenuating circumstances as effected in State v Vaileba (HCA 20 of 2011; 25 July 2011).

19. In this case, the two victims were in their marriageable ages and have had no previous acquaintanceship whatsoever with the accused. They were peacefully on their way to work when they were subjected nearly to a ninety minute long ordeal at the hands of the accused. This would certainly have been a horrendous and shameful experience for the two victims who indisputably were on their thresholds of looking for new horizons in socio-cultural fabric. The court should frown upon and denounce this kind of invasions on female working community, who usually become conspicuous by their vulnerability. In the circumstances, I would pick-up a term of ten year imprisonment as the starting point for each count and consider the following factors as aggravating.
    
20. The accused took to his advantage the distress circumstance that the victims were placed in without a bus to commute to their workplace on the day of national independence. He practised an act of deception by saying that he too was going to the airport to pick-up someone and made the two victims convinced to have joined him. In the absence of evidence that the accused was, in fact, driving to the airport to pick-up an inward passenger, I conclude that the accused did entertain the sinister plan of abducting the two victims to subject to sexual invasion as he offered the purported lift.
    
21. There was no reason for him to have carried with him a lethal knife, with which a few minutes later he threatened the two victims and got one of them, KK, to the front passenger seat by his side. The accused continued to brandish the knife in his right hand while holding the steering wheel. This conduct, as evidence revealed, instilled fear of harm and death in the two victims in addition to what was conveyed by the accused in some verbal threats at knife-point. The accused, having made a secure surrounding for this conduct with the shutters being tinted, made however, his deadly fashion of driving unsafe to the two victims and to other users of the highway.
    
22. The above unsafe conduct was further exacerbated as he threatened the two victims to unbutton their top-dresses and started touching and fondling the breast of KK while driving to satisfy his ephemeral lust.
    
23. The accused paid no heed to the requests by the two victims to leave them alone. Instead, the accused drove past the Nadi International Airport through relatively a longer distance to confine the two victims in a room in an apartment off Namaka close to Nadi Town against their will. All this time, the accused kept the two victims under threats of bodily harm and death so much so that the two victims claimed that they were in absolute fear to resist the weirdly conduct of the accused.
    
24. The testimony of the two victims as to what happened inside the room in the apartment resembled a nude drama being enacted as the two victim-girls were asked to dance topless. As they refused, the threats of harm became imminent. The accused indulged in respective sexual activity with each one of them, as described before, while making the other a shameful witness. This conduct of the accused very seriously offended feminine privacy and posed a real affront to the femininity of the two victims.
    
25. The trauma that the two victims underwent should be immeasurable. MP, in an effort to show how the incident had adversely impacted her, said that she got stigmatized as people tend to gossip on her after the incident and felt as if she was being ostracized both at home and workplace. This evidence remains unchallenged. Even though prosecution did not present evidence on victim-impact in relation to victim KK, it is not beyond court's comprehension that her youth too got adversely affected in the community given the horrible experience that she too had to undergo.
    
26. Learned counsel for the accused made a strong mitigation and urged for leniency of court on the matter of the length of sentence. He submitted that:
    
    • (i) The accused is 27 years of age having born on 27 February 2011 and has no blemishes whatsoever;
      
    • (ii) The accused is a holder of B. Sc. in Accountancy from the University of South Pacific, Fiji, and is a schoolteacher by profession;
      
    • (iii) The accused is the youngest in the family; his parents were schoolteachers, while two siblings are also graduates;
      
    • (iv) Low level of violence was used and no injury, in fact, was caused even though there were threats;
      
    • (v) Totality principle be applied and make the sentences concurrent and allow him to be a productive member of the society after a short term of imprisonment.
      
27. Learned State counsel invited the attention of court to Section 17 of the Sentencing and Penalties Decree and submitted that the sentences on two counts be made concurrent to conform to the principle of totality even though two offences were committed on two different individuals.
    
28. I have carefully considered the submissions of learned counsel for the accused and the learned state counsel.
    
29. Upon consideration of the matters as set out above, I hold that the aggravating circumstances in this case warrant a substantial increase of the sentence from the starting point. I accordingly add one year each for the six factors listed in paragraphs (20)-(25) to reach a term of sixteen years of imprisonment.
    
30. I reduce the sentence by two years for the previous good record of the accused devoid of any blemishes bearing in mind, of course, the remainder of grounds, in fact, should operate as aggravating circumstances. I, nevertheless, do not take his professional background into account to enhance the sentence as I have already considered the factors in offending to have aggravated the offences.
    
31. In the result, I arrive at a term of fourteen years as the punishment in respect of count (1) and a further term of fourteen years as the punishment in respect of count (2).
    
32. Accordingly, I sentence the accused RSN to;
    
    • (i) a term of fourteen (14) years of imprisonment on count (1); and,
      
    • (ii) a term of fourteen (14) years of imprisonment on count (2).
      

The two sentences shall be deemed to have taken effect from 29 JuIy 2011, the date of conviction and shall run concurrent to each other.

33. Having regard to the facts of this case, I choose to act under Section 18 (1) of the Sentencing and Penalties Decree and order that the accused shall not be entitled to be released on parole until he serves a minimum term of twelve years in imprisonment.
    
34. The accused has 30 days to appeal to the Fiji Court of Appeal.
    

Priyantha Nawana
Judge

High Court
Lautoka
05 August 2011