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State v Tikoigiladi - Sentence [2015] FJHC 908; HAC042.2014LAB (20 November 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 042 OF 2014LAB

STATE

V

LASARUSA TIKOIGILADI

Counsels : Ms. A. Vavadakua for State
Mr. M. Fesaitu for Accused

Hearings : 16 and 17 November, 2015
Summing Up : 18 November, 2015
Judgment : 19 November, 2015
Sentence : 20 November, 2015

Name of the victim is permanently suppressed and referred to as S.N.M.

SENTENCE

[1] Mr.Lasarusa Tikoigiladi, after being convicted on a representative count of Rape, contrary to Section 207(1), (2)(a) of the Crimes Decree No. 44 of 2009, you are now brought before this Court for imposition of your sentence.

[2] You pleaded not guilty to the above charge. The ensuing trial lasted for three days in this Court; during which, the complainant, her mother and a sister gave evidence for Prosecution, while you offered evidence for the Defence.

[3] At the conclusion of trial; having reviewed the evidence and its summing up to assessors, this Court decided to accept their unanimous opinion and found you guilty and convicted you of the said charge.

[4] The following facts were proved during the trial:

(i) The Complainant, S.N.M. was living with her mother in your house during the relevant time. You had a de facto relationship with her mother. She slept on the floor of the sitting area of your house while you slept in your bedroom with her mother.

(ii) On one morning, while her mother was in the kitchen, the accused, having removed her undergarments, laid on top of her. He placed his penis on her vagina. She felt pain. She did not complain of this to anyone.

(iii) Towards the end of January 2014, the accused chased two women away from his house. They took refuge in Ana's house. In March 2014, Ana, seeing a change in her sister, probed for a reason and realised that the complainant was pregnant. When asked who is responsible, the name of the accused was revealed.

(iv) In May 2014, the complainant was examined by a medical officer and it was learnt that the complainant was carrying a pregnancy for past four months. She eventually gave birth to a child on 11th October 2014.

[5] According to Section 207(1) of the Crimes Decree No. 44 of 2009, the maximum punishment for rape is imprisonment for life. It is a serious offence.

[6] The complainant was 17 years of age at the time of the offending and therefore, is a juvenile. The tariff for rape of a juvenile is confirmed in the Judgment of Chief Justice Gates in Raj v State [2014] FJSC 12. The starting point of imprisonment for rape of a juvenile is 10 years. The tariff is between 10 years to 16 years.

[7] In Mohamed Kasim v The State(unreported) Cr. Case No. 14 of 1993; of 27 May 1994, the Court of Appeal observed thus:

"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."

[8] In determining the starting point within the said tariff, Suresh Chandra J, in Laisiasa Koroivuki v State(Criminal Appeal AAU 0018 of 2010) has formulated the following guiding principles;

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range".

[9] Considering the nature of offending, and in the light of the above guiding principles, I commence your sentence at 11 years of imprisonment for the count of Rape.

[10] The aggravating factors are:

(i) Breach of trust the victim had towards you;

(ii) Taking advantage of the victim's vulnerability;

(iii) The victim is mentally challenged person;

(iv) The victim became pregnant;

(iv) Display of total disregard to the victim's wellbeing.

[11] I add 3 years on your sentence for above aggravating factors. Now your sentence is 14 years.

[12] The mitigating factors are:

(i) You are a first offender;

(ii) You are a 51 year old driver;

(iii) You are not married but support your 4 children as the sole breadwinner. The youngest among your children is 10 years of age;

(iv) No repetitive offending.

[13] I deduct 3 years from your sentence for the above mitigating factors. Now the sentence is 11 years.

[14] The State conceded that you were in remand for this case for 7 months.

[15] I deduct your 7 months long remand period from your sentence and now the sentence is 10 years and05 months.

[16] You drew attention of Court to the observations made by the Supreme Court in Tora v State [2015] FJSC 23, and invited this Court to impose 7 years of non-parole period on you. In the said judgment, the apex Court held;

"...the non-parole term should not be so close to the head sentence as to deny or discourage the possibility of rehabilitation. Nor should the gap between the non-parole term and the head sentence be such as to be ineffective as a deterrent."

[17] Considering Section 18 (1) of the Sentencing and Penalties Decree and in view of the observations of the apex Court in Tora v State (supra), a balance had to be maintained between your rehabilitation and deterrence. Considering your offending of the complainant who had a disability of a challenged mental state and her pregnancy, I impose 8 years of non-parole period on you.

[18] You were charged on a representative count. This Court is mindful of the fact that you should not be punished; in respect of any uncharged instances, and that you are convicted and therefore should be punished of only one instance of rape.

[19] Your final sentence is as follows:

(i) For a count of Rape – 10 years and 05 months of imprisonment.

Summary

[20] You are sentenced to 10 years and 05 months of imprisonment. You will not be eligible for parole until you complete serving 8 years of imprisonment.

[21] You have 30 days to appeal to the Court of Appeal.

ACHALA WENGAPPULI
JUDGE

At Labasa
20 November, 2015

Solicitor for the State : Office of the Director of Public Prosecution, Labasa
Solicitor for the Accused : Office of the Legal Aid Commission, Labasa