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State v Yasa [2013] FJHC 101; HAC44.2012 (8 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC44 of 2012

BETWEEN:

THE STATE

AND:

PAULIASI YASA

BEFORE : THE HON. MR. JUSTICE PAUL MADIGAN

Counsel : Mr. J. Niudamu for the State
Mr. J. Savou (L.A.C.) for the Accused

Date of Plea : 25 January 2013
Date of Mitigation : 5 March 2013
Date of Sentence : 8 March 2013

SENTENCE

[1] The accused entered pleas of guilty in this Court to the following charges:

Count 1
Statement of Offence

AGGRAVATED ROBBERY: Contrary to section 311(1)(b) of the Crimes Decree, 2009.

Particulars of Offence

PAULIASI YASA on the 6th day of February 2012, at Kulu Bay Resort, Naceva Village, Beqa in the Central Division, robbed LIN JIANG of her wallet valued at $20.00 which contains cash of $60.00 [FJD] and $25.00 [AUSD] all to the total value of $85.00 [FJD] and at the time of the robbery was armed with an offensive weapon namely a cane knife.

Count 2
Statement of Offence

GRIEVOUS HARM: Contrary to section 258 of the Crimes Decree, 2009.

Particulars of Offence

PAULIASI YASA on the 6th day of February 2012, at Kulu Bay Resort, Naceva Village, Beqa in the Central Division, unlawfully caused grievous harm to YOUYOU WENG by chopping his left wrist with a cane knife.

Count 3
Statement of Offence

RAPE: Contrary to section 207(1) and (2)(b) of the Crimes Decree, 2009.

Particulars of Offence

PAULIASI YASA on the 6th day of February 2012, at Kulu Bay Resort, Naceva Village, Beqa in the Central Division, raped LIN JIANG by inserting his fingers into the anus and vagina of LIN JIANG without her consent.

[2] On agreement to an appropriate set of facts, he was found guilty of and convicted of each of these counts.

[3] The facts of the case are that a young Australian married couple came to Fiji for a holiday in February 2012 and were staying at Kulu Bay Resort, Beqa. On the 6th February 2012 at 7.30pm they were in their bure when the accused forced his way into their room through the sliding glass door. He was armed with a cane knife and demanded money. The only cash the couple had was made up of F$60 and Aus$25 and they offered this to the accused. The accused told the husband that he was going to take his wife away and the husband of course strongly protected her by pulling the wife's hand when suddenly the accused used the cane knife to sever the husband's left hand at the wrist. The accused then pulled the wife out of the bure where he tore her clothes off and took her into the bush. The wife was naked and the accused fondled her body and put his fingers in both her anus and vagina.

The Law

[4] The maximum penalties for these offences are –

(i) aggravated robbery : 20 years

(ii) grievous harm : 15 years

(iii) rape : life imprisonment

[5] Since February 2010, rape in this jurisdiction includes invasion of anus or vagina with finger(s) as well as the penis or an object. The Court of Appeal has in Kasim CA 21 of 1993 said the tariff for rape of an adult victim must be at least 7 years. This term is to be adjusted upwards for any aggravating feature such as breach of trust, deceitful obtaining of consent for example.

[6] The Supreme Court has set the tariff for aggravated robbery to be between six and fourteen years and numerous recent cases have set a term of at least 10 years to be appropriate (Rasaqio HAC155/07, Rokonabete HAC118/07 and Vasuca HAC41 of 2009L).

[7] This Court suggested in Patel HAA030 of 2011L that the tariff for grievous harm should be between two years and six years.

Mitigation

[8] Counsel for the accused submits that the accused is aged 41 and single. He was educated in Australia and in Fiji and was resident in Australia prior to being brought back to be tried for this case. He has had a history of substance abuse (marijuana).

[9] Counsel submits that there was no reason whatsoever for this evening of atrocious barbarism apart from the fact that his history of drug abuse may have "contributed in limiting his ability to maintain self control." He submits that his client, although serving a four year sentence for robbery is to be regarded as a first offender because he has never been convicted before for rape or for grievous harm.

[10] Such a submission is rather surprising. Detail of an offender's previous record is not for the purposes of meting out additional punishment if he has committed the same crime before; it is to prove for or against the instant offender whether he is of good character or not. A person with a completely clear record will be afforded some discount in regard to that fact because the presumption must be that he has never come to the attention of the authorities before and is therefore of good character. If he is convicted of rape but has a previous for robbery then he cannot claim the benefit of a clear record and it is irrelevant whether he has been convicted before of rape or not. This present accused having two previous convictions which are "alive" cannot claim any discount for a clear record.

[11] The accused has been in remand for 7 months awaiting trial, prior to the sentence he is serving, and he certainly will be given credit for that period.

[12] Mr. Savou submits that his client has entered a plea to the charges which releases the victims from what would have been an unimaginable ordeal of giving evidence on this matter and although the plea was not at an early opportunity he will receive credit for it.

[13] Counsel submits that the accused is deeply remorseful for his actions and indeed that could be noticed in Court by his demeanour.

Aggravating Features

[14] There can be no greater aggravation to these crimes than the fact that the victims were tourists to this country. Tourists on holiday in a country that is touted world-wide as the ultimate friendly experience, should have the reasonable expectation of safety within their hotel or guesthouse rooms. Anything less than that expectation would be devastating to what is now Fiji's major source of foreign income.

[15] As a result the Courts will visit offenders against tourists with very severe sentences indeed and the message to would-be offenders is that there is zero tolerance of such crime.

[16] In a Victim Impact Report the husband has claimed that with the loss of his hand he faces an uncertain employment future and driving a vehicle and physical interaction with his children is also problematic. He cannot get the incident out of his head.

[17] Similarly the victim wife has recurrent nightmares and a new found fear of men of Pacific Island appearance. Of great concern to her is that normal marital relations with her husband have been affected and she is receiving counseling in this regard.

[18] These victim impact reports are extremely useful in confirming what has always been the perceived wisdom that nighttime invasions of property and particularly nighttime rape (and in unknown overgrown outside areas) can have momentous and everlasting effects on a victim's psyche. Regard to that must be had in sentencing.

[19] It is further aggravating that the victims were in an environment that they were not familiar with and away from their usual support groups. In particular the wife was dragged "into the bush" before being sexually assaulted.

Analysis

[20] Given the atrocity of these crimes and the absence of any real explanation for their commission, this Court ordered that the accused be psychiatrically examined. He underwent two examinations on 7 December 2012 and on 25 February 2013. The first report of the first examination states that there was no evidence of a current mental disorder yet a recommendation was made that he be admitted to St. Giles Hospital for further prolonged examination. The second report is consequent to that admission. The Consultant Psychiatrist opined that the accused did not display any evidence of a current mental disorder and that in his current mental state he does not "need hospital care, treatment and (sic) rehabilitation."

[21] Given those reports, I accepted the accused's pleas as unequivocal and proceeded to conviction and sentence.

[22] In sentencing for these offences it would be proper to pass separate but heavy sentences for each offence but in light of the three offences being founded on the same facts and to reflect the enormity of the malfeasance, I pass an aggregate sentence on the accused pursuant to section 17 of the Sentencing and Penalties Decree.

[23] I give great weight to the serious aggravating features referred to above (paras 14 to 19) and I also allow for the time the accused has spent in custody in respect of this offence before being convicted and serving a sentence for robbery. I allow discount for his plea of guilty and for his remorse.

[24] I sentence the accused to a term of imprisonment of 15 years, and he shall serve a minimum term of 13 years before being eligible for parole.

[25] This sentence will be served concurrently with the term(s) of imprisonment he is already serving and I note that it does not exceed the total term of 15 years which I would have otherwise passed for the robbery (with the rape and grievous harm being concurrent).

Paul K. Madigan
JUDGE

At Suva
8 March 2013