State v Tamani [2003] FJHC 168; HAC0007J.2003S (4 June 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0007 OF 2003S

STATE

-v-

VILIAME TAMANI

Counsel: Ms A. Prasad for State
Mr A. Vakaloloma for Accused

SENTENCE

Viliame Tamani you have been committed to the High Court for sentencing. You were found guilty in the Magistrates’ Court on 9 counts which read as follows:

FIRST COUNT

Statement of Offence

INDECENT ASSAULT: Contrary to Section 154(1) of the Penal Code Cap. 17.

Particulars of Offence

VILIAME TAMANI between the 26th day of January 1995 and the 27th day of January 1005, at Naveicovatu Village in Tailevu, in the Eastern Division unlawfully and indecently assaulted IVAMERE NADEVO by fondling her private parts and kissing her on the mouth.

SECOND COUNT

Statement of Offence

INDECENT ASSAULT: contrary to Section 154(1) of the Penal Code, Cap. 17.

Particulars of Offence

VILIAME TAMANI between the 4th day of February 1995 and 11th day of February 1995, at Lautoka in the Western Division, unlawfully and indecently assaulted IVAMERE NADEVO by fondling and kissing her breasts and licking her private parts.

THIRD COUNT

Statement of Offence

RAPE: Contrary to Sections 149 and 150 of the Penal Code, Cap. 17.

Particulars of Offence

VILIAME TAMANI between the 1st day of May 1995 and the 31st day of December 1995, at Lautoka in the Western Division had unlawful carnal knowledge of IVAMERE NADEVO without her consent.

FOURTH COUNT

Statement of Offence

INCEST BY MALE: Contrary to section 178(1) of the Penal Code, Cap. 17.

Particulars of Offence

VILIAME TAMANI between the 1st day of January 1996 and the 31st day of December 1996 at Lautoka in the Western Division had carnal knowledge of IVAMERE NADEVO who is to his knowledge his daughter.

FIFTH COUNT

Statement of Offence

INCEST BY MALE: Contrary to Section 178(1) of the Penal Code, Cap. 17.

Particulars of Offence

VILIAME TAMANI between the 1st day of March 1997 and the 31st day of May 1997 at Suva in the Central Division had carnal knowledge of IVAMERE NADEVO who is to his knowledge his daughter.

SIXTH COUNT

Statement of Offence

INCEST BY MALE: Contrary to Section 178(1) of the Penal Code, Cap. 17.

Particulars of Offence

VILIAME TAMANI on 7th day of June 1997, at Suva in the Central Division had carnal knowledge of IVAMERE NADEVO who is to his knowledge his daughter.

SEVENTH COUNT

Statement of Offence

INCEST BY MALE: contrary to section 178(1) of the Penal Code, Cap. 17.

Particulars of Offence

VILIAME TAMANI on the 7th day of June, 1997 at Suva in the Central Division, had carnal knowledge of IVAMERE NADEVO who is to his knowledge his daughter.

EIGHTH COUNT

Statement of Offence

INCEST BY MALE: Contrary to section 178(1) of the Penal Code, Cap. 17.

Particulars of Offence

VILIAME TAMANI on 29th day of June, 1997 at Sigatoka in the Western Division, had carnal knowledge of IVAMERE NADEVO who is to his knowledge his daughter.

NINTH COUNT

Statement of Offence

INCEST BY MALE: Contrary to Section 178(1) of the Penal Code, Cap. 17.

Particulars of Offence

VILIAME TAMANI on the 30th day of June, 1997 at Suva in the Central Division had carnal knowledge of IVAMERE NADEVO who is to his knowledge his daughter.

At the trial, your daughter gave evidence of a harrowing series of events from January 995 to June 1997. She said that your relative approached her in 1995 to come to live with you when she was 20 years old. She did so, and you then embarked on a course of conduct which commenced with acts of indecency and one act of rape, and continuing with a sexual relationship which are the subject of Counts 4 to 9. The relationship continued after your daughter went to Nursing School and was based on a series of threats and assaults on her to procure her continued submission. There is evidence that your daughter lived in a state of continued fear until eventually she confided in the nurses at the Nursing School, who reported the matter to the police.

There are many aggravating factors in this case and very little mitigation. The length of time the victim suffered in silence, the betrayal of trust and innocence, her attempts at committing suicide in her desperation and her inability to escape from you even at the Nursing School where you continued to visit her for the purpose of sexual intercourse are all aggravating factors which must lead to deterrent sentences. In your favour is that you have raised a family despite your wife'’ illness, and are a fist offender. However, your daughter was forced to give evidence in this case and relived her distress in the witness box.

Counts 1 and 2

The tariff for indecent assault in Fiji is from 1 to 4 years imprisonment. In Mark Mutch –v- State Crim. App. No. 0060 of 1999, the Fiji Court of Appeal upheld sentences of 4 years for the indecent assault of children by an adult friend. In this case I consider a sentence of two years imprisonment to reflect the gravity of the offence, the relationship between the accused and the victim, and the mitigation.

Count 3

The starting point for rape is 7 years imprisonment. In Waisake Navunigasau –v- State Crim. App. No. AAU0012.1996, Scott J sentenced a father who raped his 17 year old daughter to 9 months imprisonment. In Navuniani Koroi –v- State HAA0050.2002 a 12 year sentence imposed for the rape of the accused’s daughter over several years resulting in her pregnancy was reduced to 11 years imprisonment. In Peniasi Senikarawa –v- State HAC0017 of 2002, I sentenced the accused to 11 years imprisonment for the rape by the accused of his 14 year old step daughter.

In this case I consider that the violence used to force your daughter into submission, and your disregard for the fact that she was your daughter and trusted you, warrant a sentence of 11 years imprisonment. Your daughter was not your property for you to do with her as you wished.

Counts 4 – 9

The maximum sentence for incest by male is 7 years imprisonment. This is the same statutory maximum as that for the same offence under the Sexual Offences Act (England) 1956. The English Court of Appeal in Attorney-General’s Reference (No. 1 of 1989) 90 Cr. App. R. 141 laid down useful guidelines for sentencing in such cases which I consider to be useful in Fiji. On the basis that there is no plea of guilty, where the victim is over the age of 16 years, sentences should range from a nominal penalty to 3 years imprisonment depending on whether there was a degree of force, and considering the need to keep the family intact. Where the victim is aged between 13 to 16 years, sentences between 5 years and 3 years imprisonment would be appropriate depending on the harm to the child and the degree of corruption involved. Where the victim is under the age of 13, a term of 6 years imprisonment would be appropriate. The younger the victim, the more likely it is that her will was overborne and the more serious the offending.

Generally in cases of incest, aggravating factors are as follows:

1. physical or psychological suffering and harm;
2. the period of time over which the offending took place;
3. the use of threats or violence;
4. the incest being accompanied by acts of indecent assault;
5. resulting pregnancy;
6. the commission of the offence against several victims.
   

Mitigating factors are:

1. a plea of guilty;
2. evidence that the accused felt affection towards the victim;
3. consent of the victim, or seduction of the accused by the victim.
   

Using these guidelines, I consider that with the use of threats and force and the two year period of the offending, you should be sentenced at the higher end of the tariff. There was no plea of guilty, no evidence of genuine affection. Indeed it appears that you used your daughter as an outlet for your sexual inclinations. I sentence you on each count of incest to three years imprisonment.

The sentences are therefore as follows:

Count 1 - 2 years

Count 2 - 2 years

Count 3 - 11 years

Count 4 - 3 years

Count 5 - 3 years

Count 6 - 3 years

Count 7 - 3 years

Count 8 - 3 years

Count 9 - 3 years

Because the offences were part of a continuing course of conduct, and because consecutive sentences would be excessive in total, I order that all sentences be served concurrently.

Nazhat Shameem
JUDGE

At Suva
4th June 2003