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

State v Nairogorogo [2015] FJHC 687; HAC14.2013 (25 September 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No.HAC 14 OF 2013

STATE

V

MANOA NAIROGOROGO
JOSEFA RAUTO
KAMELI SAUDUADUA
ABARAMA SIRI

Counsel: Ms. K. Semisi for the State
Mr. A. Rayawa for all accused

Date of conviction: 21 September 2015
Date of Sentence: 25 September, 2015

SENTENCE

[1] On the 2nd day of September 2015, after trial in this Court all four accused were convicted of raping a 29 year old mother of 3 girls on the 10th December 2012 at the Navua Club. In addition the third accused was convicted of a further count of rape of the same woman.

[2] The facts of the case were that on the 15th December 2012, all four accused were drinking at the Navua Club. The victim too was also drinking there in a separate group and had been there all day. The bar closed at 1.00am and as is normal all drinkers continued to drink downstairs on the grounds around the Club. The first accused asked the lady if he could have sex with her which she refused, saying she wanted to go home. He punched her on the face forcing her to the ground whereupon he removed her lower garments and raped her. The first accused's three companions then took turns one after the other to rape the woman. The third accused in addition forced himself into her mouth. A bystander called the Police and three of the accused were arrested at the scene, the fourth at home early the next morning. All four made admissions to rape in interviews under caution.

[3] The tariff for rape in Fiji is well settled. When the victim is an adult as in this case a minimum sentence of 7 years must be imposed. (Kasim CA 21 of 1993)

[4] Much has been said recently by the Courts as to the gravity of rape as a crime and the tragedy such an unthinking and impulsive act has on the lives both of the victims and of the perpetrators. These young men all in their 20s had employment and were leading useful and productive lives in the community before they embarked on an evening full of alcohol leading to this despicable assault on a vulnerable young mother.

[5] More importantly it is the victim's enjoyment of life that has been shattered. She says in a victim's impact statement that once she had recovered from bruises on her face, legs and injuries to her sexual organs, she suffered trauma and the alienation of her family. It has been repeatedly said by psychologists that the effect of sexual assault on victims is profound and prolonged. The victim a 29 year old mother of 3; had been recently separated from her partner so was in a fragile state already.

[6] It is a highly aggravating feature of this case that these men took advantage of a woman who was perhaps weakened by alcohol and even more aggravating that she was forced to submit to the first offender by means of physical violence.

[7] It would appear that there is a perception about that if a female is drinking with males and imbibes as much as they do, that she must make herself "available" for subsequent sexual services. Sadly that is not the case. A woman is entitled to drink in a club and is entitled to the respect that any drinking young man would extend to any male companion and to regard a female drinking companion as "fair game" will receive no recognition from the Courts.

[8] It is also aggravating that these offences occurred in the early hours of the morning, mostly in the darkness and on the rough grounds of the club in public. The doctor examining the lady later found scratches and bruises on her legs and even grass and dirt attached to her genitalia. It was a brutal and undignified experience for her.

[9] Mr. Rayawa advanced factual detail in mitigation for his clients.

Mitigation

[10] All four accused have clear records and are first offenders.

[11] The first accused is now 29 years old and is married without children. He asks for forgiveness and expresses remorse.

[12] The second accused is now 22 years old and is a hairdresser. He makes an apology to the Court and asks for leniency.

[13] The third accused is 22 years, is married and is the father of a child born just days ago. He is a farmer and works to support his family. He says he cannot remember what happened that night as he was very drunk but asks for forgiveness in any event.

[14] The fourth accused is 22 years old and is a factory worker. He apologises to the Court and asks for leniency. He too says he was too drunk to remember anything but nevertheless asks for forgiveness.

[15] The assault on this woman was a nasty violent group attack and as such must attract penalties over and above the usual penalty for rape. An enhanced starting point will be taken for the fact that it was a group or "gang" rape.

[16] Whilst the normal range of sentences for rape is 7 to 15 years (Kasim), the range for a gang rape, where all perpetrators are acting in agreement, should be increased by making the lower starting point of the range to be a term of nine years. Any additional aggravating factors particular to the case being sentenced will of course be added to that point.

[17] For all of these accused I take the lower starting point for gang rape at nine years imprisonment. From there I consider the case of each accused in turn.

First accused

[18] The first accused appears to have been the instigator and leader of this gang rape. He is some years older than the others and should have been in a position to guide the younger men and set an example of moral rectitude. He punched the victim in order to make her compliant and he raped her in public which must have added to the indignities she was subjected to.

From the starting point of nine years I add two years for the violence he used and one further year for the very public indignity. From that total of twelve years I deduct a period of one year for his clear record and the short time he spent in custody before trial. He will serve a sentence of eleven years imprisonment. Eight years of that term will be served before he will be eligible for parole.

The second accused

[19] The second accused saw the first accused having sex with the victim and had no hesitation in wanting to take his turn immediately afterwards. From the starting point of nine years (which subsumes the group attack) I add one year for the public humiliation of the victim and I deduct one year for his clear record and for the short time he has spent in custody. He will serve a sentence of nine years imprisonment for this offence of which seven years will be served before he is eligible for parole.

The third accused

[20] The third accused is convicted of two counts of rape, one vaginal and one oral. He says in his cautioned interview (obviously accepted as true) that he saw the second accused having sex with the woman and he asked the second accused if he too could have sex which he did. He later forced himself into the victim's mouth. Although this has been charged as a separate count of rape, it is a further indignity inflicted on the vulnerable and subjugated victim and he must therefore be additionally punished over and above the usual concurrent sentence.

From a starting point of nine years for the first count (Count 3), I add one year for the indignity of public assault and deduct one year for his clear record and for the short time he has spent in custody leaving a final sentence of nine years imprisonment.

[21] For the second (oral rape - Count 4) I also pass a sentence of nine years imprisonment. This term will commence one year from today which means he will serve eight years of the second sentence currently with the first and one year consecutively. In effect, the third accused will serve a total term of ten years imprisonment for both offences. He will serve a minimum term of eight years before being eligible for parole.

The fourth accused

[22] The fourth accused admitted in his interview that he had moved the naked girl from the grass to a place under the club because it was raining. It was there that he put her in a position of his choice and raped her. He said she was crying at the time and her face was swollen.

From the starting point of 9 years I add nothing for aggravation of the offence but I do deduct one year for his clear record and the short time he has spent in custody resulting in a sentence of eight years. Of all four assailants, the fourth accused was the only one to have removed her from public view and out of the rain and this lesser sentence is condign punishment for his crime. He will serve a minimum term of 6 years before being eligible for parole.

[23] In summary:

First accused: (Count 1): 11 years (minimum 8 years)

Second accused: (Count 2): 9 years (minimum 7 years)

Third accused: (Count 3): 9 years and

(Count 4): 9 years (one year consecutive)

(minimum 8 years)

Fourth accused: (Count 5): 8 years (minimum 6 years).

P.K. Madigan
Judge

At Suva
25September, 2015