State v Seru [2003] FJHC 190; HAC0021J.2002S (31 March 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0021 OF 2002S

STATE

-v-

SAMU SERU

Counsel: Mr J. Waqaivolavola for State
Ms J. Nair for Accused

SENTENCE

Samu Seru, you have been convicted on your pleas of guilty of the following charges:

FIRST COUNT

Statement of Offence

ABDUCTING IN ORDER TO SUBJECT A PERSON TO THE UNNATURAL LUST OF ANY PERSON: Contrary to Section 252 of the Penal Code, Cap. 17.

Particulars of Offence

SAMU SERU on a day between the 1st of May 2001 and the 15th June 2001, at Tailevu in the Eastern Division, abducted [THE COMPLAINANT] in order that she may be subjected to the unnatural lust of SAMU SERU.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

SAMU SERU on a day between the 1st day of May 2001 and the 15th June 2001, at Tailevu in the Eastern Division, had unlawful carnal knowledge of [THE COMPLAINANT] without her consent.

THIRD COUNT

Statement of Offence

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

Particulars of Offence

SAMU SERU on a day between the 1st of May 2001 and the 15th June 2001, at Tailevu in the Eastern Division, had unlawful carnal knowledge of [THE COMPLAINANT] without her consent.

FOURTH COUNT

Statement of Offence

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

Particulars of Offence

SAMU SERU on a day between the 1st of May 2001 and the 15th June 2001, at Tailevu in the Eastern Division, had unlawful carnal knowledge of [THE COMPLAINANT] without her consent.

FIFTH COUNT

Statement of Offence

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

Particulars of Offence

SAMU SERU on a day between the 1st of May 2001 and the 15th June 2001, at Tailevu in the Eastern Division, had unlawful carnal knowledge of [THE COMPLAINANT] without her consent.

SIXTH COUNT

Statement of Offence

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

Particulars of Offence

SAMU SERU on a day between the 1st of May 2001 and the 15th June 2001, at Tailevu in the Eastern Division, had unlawful carnal knowledge of [THE COMPLAINANT] without her consent.

The Nausori Magistrates’ Court has committed you to the High Court for sentence on the ground that there were matters relevant to your character and antecedents which warrant a greater sentence than that court had powers to give. These were matters disclosed in a psychiatric report written after an examination of you, and by the facts of the case which disclose that you raped your daughter.

The maximum sentence for the offence of abducting a person to subject her to unnatural lust is 7 years imprisonment. In Roshan Ali –v- The State Crim. App. No. HAA0008 of 2002L, I found that in a case of the abduction of a girl under the age of 18 years for sexual purposes, a starting point of 18 months imprisonment was appropriate. There was evidence of a betrayal of trust by an older relative, and the forced use of marijuana.

Similarly in this case you abducted your own daughter to have sexual intercourse with her. You took her to a pigsty, ordered her to take off her clothes, struck her with a stick, tied her feet and hands with rope, and raped her. This is one of the worst cases of abduction, and I consider that a starting point of 18 months imprisonment to be appropriate. After reducing the sentence for good character, and for the plea of guilty, and increasing it for the violence, the betrayal of trust and the age of the complainant, I arrive at a sentence of 3 years imprisonment.

I turn to the five counts of Rape. In Waisake Navunigasau –v- The State Crim. App. No. AAU0012 of 1996S, the Fiji Court of Appeal upheld a nine year term of imprisonment for the rape of a 17 year old girl, who was the accused’s daughter. In that case the rape took place after the administering of threats over a period of 6 months. In State –v- Navauniani Koroi Crim. App. HAA0050 of 2002, I sentenced the accused to a total of 12 years imprisonment for the rape of his 13 year old daughter who became pregnant as a result of the rape. That sentence was reduced to 11 years imprisonment by the Court of Appeal to reflect his guilty plea.

I take as my starting point, 7 years imprisonment. I give you credit for your previous good character, the term spent in remand, and for the unfortunate life you have led as a result of your disability. I also give you some credit for your guilty plea although you did not change your plea until after your daughter had given her evidence. Nevertheless, you saved her the trauma of being cross-examined.

The aggravating circumstances in this case are considerable. The facts of each count show the use of violence either with a stick or spear. Although it is not known whether the victim received any injuries as a result of these assaults, no injuries (other than to her hymen) are recorded in her medical report. Nevertheless, weapons were used to cow the victim into submitting to the sexual intercourse. The fact that the victim was young and is your daughter, are also aggravating circumstances. You grossly breached the trust vested in you as her parent and took advantage of her youth and vulnerability. In all the circumstances after adjusting the sentence to reflect both mitigating and aggravating circumstances, I arrive at a sentence of 10 years imprisonment on each count of rape. They are to be served concurrently with each other.

I have given anxious consideration to the question of whether the sentence on Count 1 ought to be served consecutively to the other counts. In Roshan Ali (supra) I upheld consecutive sentences on the ground that the total of 7 years imprisonment reflected the totality of the offending. In this case a total sentence of 13 years imprisonment would be well in excess of the sentences passed in the comparable cases of Navauniani Koroi (supra), Waisake Navunigasau (supra), and Mark Lawrence Mutch –v- The State Crim. App. No. AAU0060 of 1999. In this last case, a sentence of 7 years imprisonment was increased to 10 years by the Court of Appeal for the rape of a nine-year old child whom the appellant had befriended.

For these reasons, I order that all sentences on each count be served concurrently with each other.

I sentence you as follows:

Count 1 - 3 years imprisonment

Count 2 - 10 years imprisonment

Count 3 - 10 years imprisonment

Count 4 - 10 years imprisonment

Count 5 - 10 years imprisonment

Count 6 - 10 years imprisonment.

These sentences are to be served concurrently with each other.

Nazhat Shameem
JUDGE

At Suva
31st March 2003