State v Ledua [2004] FJHC 118; HAC0003.2004 (28 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0003 OF 2004

BETWEEN:

THE STATE
Respondent

AND:

SAMUELA LEDUA
Applicant

Counsel: Ms P. Madanavosa - for the State
Accused - in Person

Date of Hearing: 7 – 11 June, 2004
Date of Sentence: 28 June, 2004

SENTENCE

Samuela Ledua, by the unanimous opinion of the three assessors, you have been found guilty after trial on one count of attempted murder and one count of incest. I have concurred with these opinions and you have accordingly been convicted.

The facts briefly stated are these. Your marriage relationship with your wife deteriorated and you turned to your daughter for the social and physical intimacy normally reserved for a marriage relationship. You described that life as like a husband and wife.

You admitted to the police that on Tuesday the 30th of September last year you had sexual intercourse with her. You justified that to the Interviewing Policeman by saying:

“We both know what was happening because once I told her that what we were doing is wrong and she replied “its okay it's too late”. It's already happened. She further stated that for me to look after her education well and that we will migrate overseas. She also said that “she will then look after me there and we will be having two children when she have attained the age of twenty-seven (27)”.

It was clear from your police interview that you had a long standing intimate relationship with your daughter. In your own mind at least you thought that secret was safe as no one would ever reveal your relationship as it was “founded both in agreement and founded in truth”.

As for the attempted murder charge the sad fact is that your daughter unburdened herself and disclosed your relationship with her. You tried to convince your wife and daughter to withdraw that allegation but they did not do so to your satisfaction. You had little sleep and little to eat over the next few days. You became desperate over your daughter’s disclosure and the loss of your relationship.

As an undercover military operative you had long since armed yourself with a bayonet that you kept for protection. You took this bayonet, ran with it to a house where your wife and children were sheltering. Made your way into their bedroom. Confronted your daughter and stabbed her in the chest.

You later surrendered to the police and told Acting Inspector Tui that you had stabbed your daughter to death. You gave as the reason you stabbed her an allegation by your daughter that she had been raped by you. You commented that you were quite satisfied with what you had done.

Your daughter was rushed to hospital. It was discovered she had a large chest wound. She survived your attack.

You were arrested and held in prison on remand awaiting trial. Whilst in prison you and your family reconciled. Your daughter recanted her allegation that you had a sexual relationship with her and said that the knife wound in her chest was somehow caused solely by her and not you.

Given these circumstances the State could not call either your wife or your daughter. They were however available witnesses. They were not called by you at the trial. You have sought to explain why in your mitigation.

I have to sentence you on the basis of the facts displayed in evidence not the facts as you or your family would wish them to be.

In accordance with that principle the simplest sentencing background to this matter is that you had a sexual relationship with your daughter that you knew was wrong and forbidden. Your daughter told the police. The fact that she broke your unspoken bond angered you; rather than live with that shame you decided to kill her.

These facts speak for themselves. No amount of reconciliation or late conversion can take away the stain of your ugly and deplorable actions.

Background

You are a mature man 37 years old. You are married and have three girls aged 8, 11 and 15 attending primary and secondary school. You are an articulate and intelligent man. You joined the Republic of Fiji Military Forces as a soldier on the 13th of November, 1987 and have served a total of 17 years to date. That service has been with merit. You have served in peacekeeping forces overseas. You are a trained Intelligence Operative working undercover in the Suva community.

You have two previous violence related convictions.

Your Mitigation

You provided the Court last week with a comprehensive letter written in the Fijian language which has been translated by the Court. This letter was supplemented by correspondence from the Fijian Prison Fellowship, a report from your Commanding Officer in the Army and letters from your wife and children. I have considered all of these materials.

The Attempted Murder

Section 214(a) of the Penal Code provides life imprisonment as the maximum available penalty.

In the State v Manieta Navonovono CA HAC0017 of 2001L my brother Justice Govind in sentencing an accused on an attempted murder charge emphasized that apart from punishment for this crime the Courts must sternly sentence offenders to deter others. I agree.

This is a most serious offence. There is no mitigating remorse. You freely admitted these charges to the police. You even commented that you were satisfied with what you had done in stabbing your daughter in the chest. That is a terrifying indictment on your character.

The starting point for this offending in my opinion is a term of imprisonment of 10 years.

The aggravating features are:

1. Your complete lack of remorse.
   
2. A degree of premeditation and planning in your attempt to kill your daughter.
   
3. The life threatening injury suffered by her.
   
4. The complete betrayal of trust between you and your daughter, you should have been her protector not her killer.
   
5. You are not a first offender. You have previous convictions.
   

Against these aggravating features are the mitigating factors:

1. You have served your country well. You are a decorated soldier.
   
2. Although not remorseful you couch your mitigation in terms of your children’s needs and not your own selfish desire to avoid imprisonment. That small comfort stands to your credit.
   

Although not determinative of sentence I take into account the heartfelt plea of your daughter victim that you not be sent to jail. This plea is supported by her two younger sisters and your wife. While I accept their pleas for clemency they must realise that my obligations go beyond adherence to their needs only.

For all of the aggravating factors I consider the sentence should be increased by a further 4 years making a sentence of 14 years imprisonment. However, against that total term I must take into account the mitigating features and properly acknowledge all of them but especially your dedicated service to the Fijian Military Forces and peacekeeping roles for other nations. Taking the mitigating features into account I would discount the sentence by 4 years making an effective term for imprisonment of 10 years in jail.

The Incest

Section 178 of the Penal Code now provides a penalty of 20 years imprisonment for incest. Prior to June of 2003 the maximum term for offences of this kind was 7 years imprisonment.

The State have indicated by increasing the penalty that this is a most serious offence. Sentencing principles applicable prior to the amendment should still be taken into account but as a result of the increase in the maximum available sentence starting points and overall duration of sentences will naturally increase.

My sister Justice Shameem had occasion to consider sentencing tariffs for incest in various appeals including Sikeli Koro v The State, Criminal Appeal HAA0048 of 2002 and The State v Viliame Tamani, a State Appeal found in Criminal Case 007 of 2003S.

In Tamani at page 5 of her judgment her honour after consideration of the English Court of Appeal in Attorney-General’s reference No. 1 of 1989 90 CR. APP. R.141 laid down guidelines for sentencing in such cases which she considered to be useful in Fiji.

At page 7 her honour said:

“Where the victim is aged between 13 to 16 years, sentences between 5 years and 3 years imprisonment would be appropriate depending on the level of 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”.

Her honour did comment that where the victim was over the age of 16 years and in special circumstances sentences could range from a nominal penalty to 3 years imprisonment depending on whether there was a degree of force and consideration such as the need to keep the family in tact.

In the light of the statutory amendment I would suggest the following starting points:

1. Where the victim is over the age of 16 and special circumstances exist with a need to keep the family unit intact particularly for counselling and therapy in situations where there has been genuine remorse showed by a contrite offender. Four years imprisonment.
   
2. Where the victim is aged between 13 to 16 years sentences should find a starting point of 7 to 10 years imprisonment, depending on the level of harm to the child and the degree of corruption involved.
   
3. Where the victim is subjected to long term sexual abuse from a young age with complete corruption of her life and development. Offenders must expect a starting point of 10 to 15 years imprisonment.
   

In my view this offending requires a starting point of 6 years imprisonment. I find that you had a long standing intimate relationship with your daughter. However, you are to be sentenced for one act of incest.

Aggravating the offending is

(1) the complete lack of remorse

(2) gross breach of trust between the father and daughter

(3) the fact that the you beat your daughter up before you had sexual intercourse with her

(4) the level of corruption of the daughter victim as she was led into believing that her sexual relationship with you was normal to such an extent that she is still now completely blinded by your influence over her life.

In terms of mitigating features it is clear:

(1) that you have a genuine affection for your family

(2) no previous sexual offending

(3) other contributions to society

(4) an apparent reconciliation by your family with you,

The aggravating features, in my mind, are balanced out by the mitigating features. I, therefore, order an effective sentence of 6 years imprisonment.

The Totality Principle

This offending, although part of a continuing course of conduct, related to 2 quite separate crimes. You had sex with your daughter then you tried to kill her. I am obliged to consider sentencing you consecutively for each crime.

I would normally have done so, but for the heartfelt pleas of your family and the hope that your 8, 11 and 15 year old may have some realistic prospect of maintaining a relationship with you into their adult lives. I have decided that for them but not you consecutive sentences would be excessive in total. I accordingly order that both sentences be served concurrently. The result is that you go to jail for 10 years.

Gerard Winter
JUDGE

At Suva
Monday 28th June, 2004