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State v Baba [2014] FJMC 99; Criminal Case 443.2010 (6 June 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: - 443/2010

STATE

v

FILIPE BABA

PC Josuha for the Prosecution
The accused in Person

Date of Judgment : 06th June 2014
Date of Sentence : 06th June 2014

SENTENCE

1. FILIPE BABA, you were convicted by this Court after a trial for one count of Rape contrary to section 149 and 150 of the Penal Code Cap17.
   
2. In the trial it was revealed that on 08th December 2009 at Queen Elizabeth Drive, Suva you with another raped one Vani Baleisuva.
   

LAW AND TARIFF

3. The maximum penalty for this offence under the Penal Code is life imprisonment.
   
4. In State v Marawa [2004] FJHC 338; HAC0016T.2003S (23 April 2004) his Lordship Justice Gates (as he then was) said :
   

“Parliament has prescribed the sentence of life imprisonment for rape. Rape is the most serious sexual offence. The courts have reflected increasing public intolerance for this crime by hardening their hearts to offenders and by meting out harsh sentences.

A long custodial sentence is inevitable. This is to mark the gravity of the offence as felt, and correctly so, by the community. Imprisonment emphasizes the public’s disapproval and serves as a warning to others who may hitherto regard such acts lightly. One must not ignore the validity of the imposition of condign punishment for serious crime. Lastly the sentence is set in order to protect women from such crimes: Roberts and Roberts (1982) 4 Cr. App R(S) 8; The State v Lasaro Turagabeci and Others (unreported) Suva High Court Crim. Case No. HAC0008.1996S .”

5. In Mohammed Kasim v The State Appeal 14 of 1993 it was stated :
   

“We consider that any rape case without aggravating or mitigating feature the starting point for sentencing an adult should be a term of imprisonment of 7 years. It must be recognized by the courts that the crime of rape has become altogether too frequent and the sentences imposed by the courts for that crime must reflect an understandable public outrage”

6. The above decision was supported in, Drotini v. The State [2006] FJCA 26; AAU0001.2005S (24 March 2006) where the court observed :
   

“The continuing frequency of such cases has resulted in a general increase in levels of sentences ordered in rape cases by the courts of Fiji. We endorse that trend. We do not suggest that the starting point described in Mohammed Kasim’s case should altered in rape cases in general but the sentencing court should not hesitate to increase the sentence substantially where there are further aggravating factors”.

7. In State v Loco [2010] FJHC 465; HAC047.2008L (22 October 2010) his Lordship Justice Madigan said :
   

“Kasim v State [1994] FJCA 25 set a starting point of rape of an adult at 7 years andmMadam Justice Shameem said in Poese v State [2005] FJHC 9 that the tariff on one count is from 5 to 10 years; however Shameem J. further said in Bulimaiwai v State [2005] FJHC 261 "sentences at the upper end of the tariff should be imposed where gratuitous violence is inflicted, where a weapon is used".

AGGRAVATING FACTORS

8. You assaulted the victim causing injuries to her face. The victim got in to your taxi to go to her home and taking advantage of her vulnerability you dragged her to the park and committed this offence. You committed this offence with another person.
   

MITIGATION FACTORS

9. In your mitigation you said you are 35 years old married and looking after you mother and other family members. Also you said you are remorseful and seek forgiveness from this Court.
   
10. I select 07 years as my starting point and add 04 years for aggravating factors to reach 11 years. Deduct 02 years for mitigating factors to reach 09 years imprisonment. You are not a first offender and therefore not entitled for any discount for that.
    
11. For a similar offence you are serving a prison sentence of 08 years with a non – parole period of 07 years. Therefore pursuant to section 20(1) of the Sentencing and Penalties Decree I impose a new non- parole period of 08 years for this case.
    
12. Accordingly you are sentenced to 09 years imprisonment for the Offence of Rape with a non parole period of 08 years to be concurrent with your present sentence.
    
13. 28 days to appeal
    

H.S.P.Somaratne
Resident Magistrate