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State v Basaga - Sentence [2015] FJHC 946; HAC336.2013 (3 December 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 336 OF 2013

BETWEEN:

STATE
PROSECUTION

AND:

SAKEASI BASAGA
ACCUSED PERSON

Counsel: Ms. P. Madanavosa for State
Mr. P. Tawake for Accused

Dates of Hearing: 23rd, 24th and 25th November 2015

Date of Summing Up: 27th November 2015
Date of Judgment: 30th November 2015
Date of Sentence: 03rd December 2015

SENTENCE

[Name of the victim is suppressed. The victim will be referred to as ['S.R.']

1. SakeasiBasaga, you stand convicted of following 7 counts of Rape.
   

FIRST COUNT
(Representative Count)
Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

SAKEASI BASAGA between the 1st day of January 2013 and the 31st day of January 2013 at Nabua in the Central Division had carnal knowledge of 'S.R.' without her consent.

SECOND COUNT
(Representative Count)
Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

SAKEASI BASAGA between the 1st day of February 2013 and the 28thday of February 2013 at Nabua in the Central Division had carnal knowledge of 'S.R.' without her consent.

THIRD COUNT
(Representative Count)
Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

SAKEASI BASAGA between the 1st day of March 2013 and the 31st day of March 2013 at Nabua in the Central Division had carnal knowledge of 'S.R.' without her consent.

FOURTH COUNT
(Representative Count)
Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

SAKEASI BASAGA between the 1st day of June 2013 and the 30th day of June 2013 at Nabua in the Central Division had carnal knowledge of 'S.R.'without her consent.

FIFTH COUNT
(Representative Count)
Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

SAKEASI BASAGA between the 1st day of July 2013 and the 31st day of July 2013 at Nabua in the Central Division had carnal knowledge of 'S.R.'without her consent.

SIXTH COUNT
(Representative Count)
Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

SAKEASI BASAGA between the 1stday of August 2013 and the 31stday of August 2013 at Nabua in the Central Division had carnal knowledge of 'S.R.' without her consent.

SEVENTH COUNT
(Representative Count)
Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

SAKEASI BASAGA between the 8th day of September 2013 at Nabua in the Central Division had carnal knowledge of 'S.R.'without her consent.

2. Brief facts of the case are that you are the stepfather of the complainant 'S.R.'. Complainant was 20 years old and you were 35 years old at the time you raped her. When her mother, was away at work, you repeatedly raped her by using force. You continued to rape her from January 2013 to September 2013, during the periods relevant to counts 1 – 7.
   
3. The offence of Rape carries a maximum penalty of life imprisonment. The tariff for Rape of an adult is 7 – 15 years. (State v Marawa [2004] FJHC 338 HAC 0016T.2003S (23 April 2004), Mohammed Kasim v The State, Criminal Appeal No. AAU 0021j.93s (1994) FJCA 25 (27 May 1994).
   
4. In Kasimv State (supra) 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 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"
   
5. The aggravating factors are, that you being the stepfather breached the trust reposed on you and took advantage of the vulnerability of the complainant. You repeatedly raped the victim using your authority as the stepfather and this is a domestic violence. The victim impact statement filed of record is also taken into consideration.
   
6. The mitigating factors as submitted are, that you have 2 children to maintain from your previous marriage who are attending primary school. You also support your wife and elderly mother.
   
7. You have 7 previous convictions on record and therefore you will not be eligible for a discount for your previous good behavior.
   
8. I take 7 years as the starting point and add 6 years for the aggravating factors and deduct 1 year for the mitigating factors. Now your interim sentence is 12 years.
   
9. I further deduct 2 years and 3 months for your period in remand. Now your final sentence is 9 years and 9 months.
   
10. Your non-parole period will be 8 years imprisonment.
    
11. Having considered the domestic relationship between you and the victim 'S.R.', I order a permanent Domestic Violence Restraining Order in place identifying the victim 'S.R.' as the protected person.
    

Priyantha Fernando
Judge

At Suva
03rd December 2015

Solicitors
Office of the Director of Public Prosecution for State
Office of the Legal Aid Commission for Accused