State v Senikarawa [2003] FJHC 195; HAC0017J.2002S (20 May 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0017 OF 2002

STATE

-v-

PENIASI SENIKARAWA

Counsel: Mr D. Prasad with Ms L. Chandra for State
Accused in Person

SENTENCE

Peniasi Senikarawa you have been found guilty of 5 counts of sexual assault. They were all perpetrated by you on your 14 year old stepdaughter who has given evidence of the abuse to which you subjected her in 2001 and 2002.

I have taken into account the evidence of your antecedents, your background and your education. I have also taken into account all that you have said on your own behalf, in particular your struggles to ensure that your farm was a success, and the fact that you now look after your son.

The tariff for indecent assault in Fiji is 1 – 4 years. The maximum of 4 years is usually reserved for the indecent assault of children who are in a position of trust in relation to the accused. I consider that on Count 1, a starting point of 3 years to be appropriate. After taking into account the mitigating factors, and the aggravating matters such as the relationship of trust, the age of the victim, the fact that you asked her to measure your penis, I arrive at a sentence of 3 years imprisonment. Your previous convictions, one of which is for indecent assault in 1999, entitle you to no reduction for good character.

On Count 2, you exposed yourself to your stepdaughter and insulted her modesty. The maximum sentence under section 154(4) of the Penal Code is 1 year's imprisonment. I consider a sentence of 6 months imprisonment to be appropriate.

On Count 3, the starting point for rape is 7 years imprisonment. In Mark Mutch –v- State the Fiji Court of Appeal said that in the case of the rape of a child, a sentence of 10 years imprisonment was the minimum appropriate term. In cases before this court, sentences in the range of 10 – 11 years imprisonment have been imposed on similar facts. The rape of a child who was in your trust, and who lived in fear of you because you beat her and abused her, is an offence deeply abhorrent to a society which prides itself on its compassionate attitude to the very young. Your stepdaughter was forced to give evidence twice, once at the preliminary inquiry, and secondly at the trial. Re-living her experiences in a courtroom, and being cross-examined by the very person who raped her, must have caused her deep distress. Because of your conduct, she is now in the care of the Social Welfare Department, and separated from her family.

In all the circumstances I sentence you on Count 3 to 11 year's imprisonment.

Counts 4 and 5

On these counts, I accept that in some families in Fiji, the penis or anus of children are rubbed with chillies as punishment. On the facts of this case however, I consider these acts to be part of a continuing course of abuse, both physical and sexual. The use of chillies on the private parts of children must be painful in the extreme. It is a serious example of an indecent assault on a child who trusted you and was forced to submit to these acts.

On Counts 4 and 5, I sentence you to 4 years imprisonment each.

Totality

The total sentence would be 22½ years imprisonment. This is clearly excessive and offends the totality principle. In the circumstances although each count constituted a separate offence, I order the sentences to be served concurrently.

The sentences are as follows:

Count 1 - 3 years imprisonment

Count 2 - 6 months imprisonment

Count 3 - 11 years imprisonment

Count 4 - 4 years imprisonment

Count 5 - 4 years imprisonment.

These sentences are to be served concurrently with each other. As for the welfare of your child, by copy of this sentence I refer him to the Department of Social Welfare for that Department to make necessary arrangements for his custody and care.

Nazhat Shameem
JUDGE

At Suva
20th May 2003