High Court of Fiji

“The tariff for this offence appears to range from an absolute or conditional discharge to 12 months imprisonment. The High Court said in Elizabeth Joseph v. The State [2004] HAA 030/04S and State v. Tevita Alafi [2004] HAA 073/04S, that it is the extent of the injury which determines sentee. The use of e of a pen knife for instance, justifies a higher starting point. Where there has been a deliberate causing hos; hospitalizationwith nith no reconciliation, a discharge is not anot appropriate. In domestic violence case nces of 18 months impriimprisonment have been upheld (Amasai Korovata v. Thv. The State [2006] HAA 115/06S.”

[10]. Statistics for domestic violence in Fiji are always awful. For some spouses, this can include rape. Most of the cases do not come to light because some victims think the sustainability of marriage is far more important and don’t take trouble to complain. Some of them remain passive partners due to ignorance, shame, fear or cultural taboos. It is incredible to think before 1992, that a man could rape his wife. The wife was deemed to consent to sexual intercourse on marrying the husband. In R v R [1991] UKHL 12; [1992] AC 599 the House of Lords recognized the sexual autonomy of a spouse within institution of marriage and the requirement for the prosecution to prove that sexual intercourse had taken place outside marriage was abandoned.

[11]. State v Ismail [2014] FJHC 628; HAC115.2012 (26 August 2014) Janaka Bandara J observed:

“The law pertaining to "Rape" is well settled in this jurisdiction. When the victim is over thirteen (13) years, 'consent' is an essential element to have sexual intercourse. In other words, what matters is the "consent", but not the "relationship" the perpetrator shares with the "victim". In the eyes of the Law, irrespective of their gender, everybody is equal and treated equally. A spouse is of no exception. If a wife is compelled to have sexual intercourse or oral or anal sex against her will by the use of authority, force or by threat of using force, she has a right to say 'NO' to such sexual demands of a husband. If the husband decides to proceed ahead despite of that 'NO', he risks of being criminally liable for raping his own wife”.

[12]. This sentence is passed not only to denounce your offending and punish you. But also to send a clear massage to the society that marital rape, the worst form of domestic violence is no longer tolerated in Fiji. When sexual intimacy is egoistically used to despoil marital union in order to advance a felonious urge for coitus by force, violence or intimidation, the court will step into protect sanctity of marriage, vindicate justice and protect our laws and State policies.

[13]. You committed these offences on your wife who was three months pregnant at that time. You also used violence on her in addition to the digital penetration, an act in itself constituted violence. A man who penetrates his wife without her consent commits sexual violence in a domestic relationship. Marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity. Having considered high culpability factors and the harm caused to the victim, I take 9 years as the starting point for the offence of Rape Count before taking into consideration the aggravating and mitigation factors.

Aggravating factors

[14]. You breached the trust the complainant placed on you in that she trusted you as her husband.

[15]. You committed this offence whilst on license.

[16]. You exploited the vulnerability of your pregnant wife.

Mitigating Factors

[17]. I take into account the mitigating factors submitted on your behalf. You are a first offender. You are a 42 years old farmer and you look after your family. You are a father of three children and your wife is expecting the fourth child.

[18]. You co-operated with the police.

[19]. You admitted the offences at the caution interview and pleaded guilty to the charge at the first available opportunity. In doing so, you saved precious time and resources of this court and also saved your wife from going through the ordeal again in this court. You seek forgiveness of this Court and of your wife. Your wife indicated to this Court that she accepted the apology you tendered. I accept your remorse as genuine.

[20]. I understand the difficult situation your wife and children are getting into when they are separated from you. Your dependents should not suffer and be punished for the wrong you have committed. However, I have no other option than to apply the law and sentencing principles of this country and send you to a correction centre. However, I have considered this mitigating factor into consideration in deciding your non- parole period.

[21]. I add two years to the starting point of nine years’ for aggravating factors bringing the interim sentence to 11 years. I deduct three years for your mitigating factors mentioned above.

[22]. Now your nce for the Rape count ount is 8 years’ imprisonment.

[23]. I took same mitigating factors discussed above into consideration in deciding youtence for the offence of Assault Causing Actual Bodily Harm Harm.

[24]. I sce you to 6 months imps imprisonment for the offence of At Causing Actual BodilBodily harm in Count No. 2.

[25]. Therefore your final see is:

Count No. 1 – Assault Cult Causing Actual Bodily Harm – ths imprisonmesonment

Count No. 2 – Rape - 8 years’ imprisonment.

[26] Both sentences in C No. 1 an 1 and 2 are n conntly.

[27]. Your non-parole period will bill be five years. You will be eligible for parole after five years.

[28]. 30 days to appeal to the Fiji Court of Appeal.

Aruna Aluthge
Judge

At Lautoka
17^th March 2017

Counsel:

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