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State v Seru [2015] FJHC 674; HAC064.2013 (21 September 2015)

IN THE HIGH COURT OF FIJI AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 064 of 2013

STATE

V

ELIKI SERU

Counsel : Mr.M. Vosawale with Ms. S. Lodhia for State
Mr.S. Valenitabua for Accused
Dates of Hearing : 09th – 11th September 2015
Date of Summing Up: 14th September 2015
Date of Judgment : 16th September 2015
Date of Sentence : 21st September 2015

SENTENCE

1. ElikiSeru, you were convicted after the assessors in your trial returned with a unanimous opinion that you are guilty of the offence of rape contrary to section 207(1) and (2)(a) of the Crimes Decree 2009.
   
2. You were charged by the Director of Public Prosecutions for the following offence;
   

Statement of offence

Rape: Contrary to section 207(1) and (2)(a) of the Crimes Decree 2009.

Particulars of offence

Eliki Seru, on the 10th day of January 2013 at Nasilai Village, Nausori in the Eastern Division, had carnal knowledge of Taraivini Qaravi, without her consent.

3. You were drinking grog with the victim Taraivini Qaraviand few others at her aunt's place at Drekena from 9.00pm on 09th January 2013 to 2.00am the following day. Thereafter, from 4.00am to 11.00am you were consuming home brew with the victim and others at the Nasilai cemetery. On your way from the Nasilai cemetery you and the victim were walking together on a path surrounded by tall grass. You pushed the victim on to the ground and then punched her on the left side of her mouth where she became unconscious. Then you raped her while she was lying unconscious. The victim said that when she regained consciousness you were on top of her with your penis inside her vagina and when you noticed that she revived, you were surprised and you stood up.
   
4. Rape is an offence orchestrated by lowly desire, selfishness and sense of authority and power. It portrays a total disregard of the victims autonomy over his/her body and is the worst form of invasion of a human being both physically and psychologically. It is a violent offence prevalent in today's society.
   
5. Pursuant to section 207(1) of the Crimes Decree 2009 read with section 3(4) of the Sentencing and Penalties Decree 2009, the maximum punishment for rape is life imprisonment. However, it is now settled that the sentencing tariff for rape of an adult victim isa term of imprisonment between 7 to 15 years.
   
6. In the case of Mohammed Kasim v The State [] the cour court of appeal held that the starting point for sentencing an adult in a rape case without aggravating and mitigating factors should be a term of imprisonment of severs.
   
7. You assaulted the victim which made her unconscious before you raped her. You violated her at a moment she was vulnerable and helpless; at a time she would expect your care and protection as an elder cousin brother.
   
8. Thus, I consider the following as aggravating factors in this case;
   
   1. Your physical violence over the victim to subdue her.
      
   2. You are related to the victim as her cousin brother. Therefore, there is a breach of trust.
      
   100. You raped her while she was vulnerable and helpless.
        
9. Upon hearing your counsel in mitigation, I consider the following as mitigating factors;
   
   1. You are 32 years old and you are a first offender.
      
   2. You are looking after your elderly parents.
      
   100. You are remorseful.
        
10. Your counsel had also submitted that you have learned your lesson, you now regret your actions and wish to apologise to this court and to the victim. Had this decision been taken at an earlier stage, it could have been a significant consideration in your mitigation. But by now, you have already caused the victim to relive her ordeal before this court. Therefore, even if I accept that you are remorseful, the weight I can attribute to it at this stage as a mitigating factor is minimal.
    
11. I select 7 years imprisonment as the starting point. For the aggravating factors aforementioned, I add 4 years; considering your previous good character and other mitigating factors, I deduct 2 years.
    
12. Accordingly, I sentence you to 9 years imprisonment and I order that you are not eligible to be released on parole until you serve 6 years of that sentence.
    
13. By virtue of the provisions of section 24 of the Sentencing and Penalties Decree 2009, unless the court directs otherwise, the time an offender was held in custody prior to the trial of the matter should be regarded as a period of imprisonment already served by that offender.
    
14. I note that by now you have been held in custody for a period of 285 days in relation to this matter. I do not find any reason not to allow the said period to be regarded as a period of imprisonment already served by you concerning the term of imprisonment I have imposed on you.
    
15. Therefore, for all purposes, the 285 days you were held in custody shall be regarded as a period of imprisonment you have already served.
    
16. 30 days to appeal to the Court of Appeal.
    

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : S. Valenitabua, Barrister and Solicitor, Suva.