State v Tukai [2003] FJHC 177; HAC0012X.2003S (26 August 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0012 of 2003

STATE

-V-

JOSEFA TUKAI

RULING

The Tailevu Magistrates Court, on the 3rd of June 2003, committed this matter to the High Court for sentencing. Counsel for the accused objects to such committal on the ground that the learned Magistrate based his committal not on the character of the accused, but on the seriousness of the case. The charge is as follows:

Statement of Offence

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

Particulars of Offence

JOSEFA TUKAI on the 12th day of July 2000 at Naqiri, Dawasamu, Tailevu in the Central Division had unlawful carnal knowledge of [the complainant] without her consent.

The facts of the case are that the complainant was 15 years old at the time of the offence and is a relative of the accused’s. She was a house-help for the accused’s wife.

On the 12th of July 2000, the complaint was asleep when the accused went to her and started to touch her private parts. She woke up. He threatened to assualt her if she made a sound.

He then raped her. She reported the matter to her aunt and the rape was then reported to the police. The accused was then interviewed and charged.

The accused admitted the facts. He is a first offender. He is 57 years old and married with 3 grown- up children.

His wife is physically handicapped and he is the sole breadwinner of the family. He approached the parents of the complainant in the traditional way, and they accepted his apology.

“The learned Magistrate, having heard facts and mitigation, revealed.

1. The victim is only 14 years of age, while accused is 50 years.
   
2. The victim has been looking after the accused’s wife and staying together in the same house.
   
3. Rape offence is too prevalent in Fiji and the maximum imprisonment term of 5 years imposed by Magistrates Court is still not enough.
   

Having considered these, this matter is now referred to the High Court for sentencing pursuant to section 222, (1) of the CPC.”

It is apparent that the learned Magistrate based in decision not simply on the seriousness of the offender, but also on the character of the offender. The age- gap between the victim and the accused and the special relationship of trust which exists when a young girl joins the family of a much older man were the matters he took into account.

The starting point for rape in Fiji is 7 years imprisonment. In Mark Mutch v State Criminal App AAU0060.1999. The Court of Appeal increased a 7-year term for the rape of a child to 10-year term was “the minimum appropriate” for the rape of children. Clearly the 5-year jurisdictional limit for one count of rape in the Magistrates Court is woefully inadequate for the rape of a child even where there are overwhelming mitigating circumstances.

In Timoci Momutu v State Crim App AAU0018.1994 and Navuniani Koroi v State Crim App HAA0050 OF 2002 the Court of Appeal, adopting and applying the principles in R v King’s Lynn Justices ex parte Carter and others (1968) 3 ALL ER 358, found that evidence of character and antecedents is not limited to the record of previous convictions. It can include evidence of a continuing course of conduct (which is not the subject of the changes) and the breach of a relationship of trust.

In this case there are two matters relevant to the accused’s character. One is that he raped a 14 year- old child.
The other is that he raped a person who was treated a s a member of the family and in relation to whom he was a father figure. The learned Magistrate considered both of these matters in deciding to commit. In doing so, he ruled within the ambit of Timoci Momutu and Navuniani Koroi and he did not err.

In the circumstances, I find that the committal for sentence was proper and lawful. I will now proceed with the sentencing process.

Nazhat Shameem
Judge

(26/08/03)