State v Tutara [1994] FJHC 144; HAM0003t.1994b (13 October 1994)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

MISC. CASE NO. HAM0003T OF 1994

STATE

v.

KATOKAITI TUTARA

Counsel: Ms. L. Laveti for State
Accused in person

Hearing: 13th October 1994
Sentence: 13th October 1994

SENTENCING REMARKS OF PAIN J.

Katokaiti Tutara, you pleaded guilty in the Magistrates Court to four charges of rape. The record shows that the facts outlined by the prosecutor were admitted by you. The Magistrate properly remanded you to this court for sentence.

When you first appeared this morning, I gave you the opportunity to make submissions. This was done through an interpreter. The submissions that you then made seemed inconsistent with the plea of guilty to the charges of rape. I therefore arrange for the interpreter to explain to you the contents of the summary of facts, the complainant's statement and your own statement.

I am advised that you now acknowledge that the summary of facts and complainant's statement are true. You have told me that through the interpreter. I can therefore proceed to sentence you on the four charges of rape to which you have pleaded guilty.

The charges amount to very serious criminal offending. They involve the rape of your own daughter, aged 16 years on four separate occasions over a period of six weeks. From her statement it is evident that this was her first sexual experience. Such conduct is notoriously reprehensible and condemned by society.

I do not intend to recite the details. The summary makes appalling reading.

You used your position to intimidate the victim. Your callous behaviour towards your own daughter is quite horrific. Instead of protecting her innocence, you sexually abused her. On the very first occasion, you behaved in a very frightening and intimidating manner and forced her to succumb to your demands. On each of the four occasions you used threats and force and had intercourse entirely against her will. This abuse and betrayal of trust must have had an emotional impact upon the girl. Such offending by a father is very serious and calls for a substantial prison sentence.

I have given careful consideration to the term to be imposed. I have determined the appropriate sentence to be nine years imprisonment and will give my reasons for this.

This court has customarily followed the sentencing guidelines laid down in the English case of Billam. That must now be done with due regard to the decision of the Fiji Court of Appeal in the case of Mohammed Kasim. In that case the Court ruled in emphatic terms that the starting point for a rape case without aggravating or mitigating features is imprisonment for seven years. This is more severe then the basic prison sentence enunciated in Billam which said that "for rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as a starting point in a contested case". Subject to that qualification regarding the starting point, the principles in Billam remain a useful guide to sentencing for the offence of rape.

This was undoubtedly a rape by a person who was in a position of responsibility to the victim. Indeed as father you had the paramount responsibility for this girl. That circumstance raises the starting point of seven years to something in the region of ten years.

There are some of the further aggravating features recognised in Billam's case. The rape was repeated. It was committed on four separate occasions and on the last occasion it occurred twice. On some occasions some serious threats were made. These aggravating circumstances raise the justifiable sentence to well in excess of ten years.

However a substantial allowance must be given for your full confession and immediate plea of guilty on all four charges. You have saved the victim the extra distress of having to give evidence. This is recognised as a significant mitigating circumstance in these cases. Proof of these offences would have depended substantially, if not entirely, on the girl's evidence. You have made a full admission and expressed regret for what you have done. You have no previous convictions.

Taking all those matters into account you are sentenced to nine years imprisonment on each charge, the terms to be served concurrently.

I am conscious of the fact that this is a long term and you come from Rabi Island. This will mean a long period of isolation from your wife and family. It is important that they have an opportunity to keep in contact with you. I therefore recommend to the Prison Authorities that, if at all possible, your sentence be served at Labasa Prison.

JUSTICE D.B. PAIN

HAM0003T.94B