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

State v Naqau [2012] FJHC 910; HAC127.2010 (2 March 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 127 OF 2010

BETWEEN:

STATE PROSECUTION

AND:

SAKIUSA NAQAU
ACCUSED PERSON

Counsel: Mr. Prasad Y for State
Accused In Person

Date of Summing Up : 22nd February 2012
Date of Judgment : 23rd February 2012
Date of Sentence : 2nd March 2012

SENTENCE

1. Sakiusa Naqau, you stand convicted after trial for the offence of Rape contrary to sections 207(1) and 207(2)(b) of the Crimes Decree 2009.
   
2. The brief facts of the case were that you, with your cousin brother invited the victim and her cousin brother for drinks and had drinks beside the bamboo tree near the Nausori club. After finishing the drinks, when the brother of the victim went to get a taxi to go home, you made sexual advance to the victim. When she refused, you punched her and the victim sustained injuries. You assaulted her, weakened her, removed her T-shirt and the ¾ pants and forced her to suck your penis. Victim refused and you inserted your finger into her vagina without her consent.
   
3. The aggravating factors in this case are that you with your ulterior motive invited the victim for drinks. When the victim refused to consent to your sexual acts, you punched her and assaulted her. She was injured on her face and upper lip due to your assaults.
   
4. In mitigation, you submitted to court that you are married and having 4 children. Three of them are attending secondary school and the youngest is 18 months old. You are the sole bread winner of the family. You work as a driver for Public Works Department. Your wife is 6 months pregnant. You have no previous convictions within the last 10 years.
   
5. Further I also consider what is said about you by Pastor Volau Mateyawa by his letter dated 28/02/2011.
   
6. In the case of Kasim v State (1994) FJCA 25; AAU 0021j.93S (27 May 1994) it was decided that the starting point for sentencing an adult in any rape case without aggravating or mitigating features, should be a term of imprisonment of 7 years.
   
7. In Mohammed Kasim's case 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".

8. I take 7 years imprisonment as the starting point. I add 5 years for the aggravating factors mentioned above which I consider very seriously the fact that you assaulted the victim injuring her when she refused to consent. Now your interim total sentence is 12 years. I deduct 3 years for your mitigating factors mentioned before, making the interim total to 9 years.
   
9. Your final sentence is 9 years imprisonment.
   
10. You are not eligible to be released on parole until you serve a minimum period of 7 years.
    

Priyantha Fernando
Judge

At Suva
2nd March 2012