State v Marawa [2004] FJHC 338; HAC0016T.2003S (23 April 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Cr. Action HAC0016.2003S

THE STATE

V

NACANIELI MARAWA

Fiji High Court, Suva
23 April 2004
Gates J

SENTENCE

Mr N. Lajendra for the State
The Accused in Person

[1] Nacanieli Marawa you have been found guilty by the unanimous opinions of the 3 assessors and by me and convicted of two counts of rape contrary to sections 149 and 150 of the Penal Code. These are very serious charges indeed.

[2] The complainant, Moli as she was known, was entrusted to your care by her parents. She had been living in a village near Vunidawa and was to live with you and your wife, who was her father’s sister, so as to continue her schooling in Suva. She was in Form 3 and aged 14. What you did to her was a gross breach of that trust. You were to act as a parent to her. Instead you violated her.

[3] Moli stayed alone with you and her Aunt. She was brought to Suva on 22 January 2001. She had only been there 2 days when you carried out the first incident. Whilst her Aunt was still at work, you came into her bedroom, locked the door, and tried to make the complainant lie down. When she tried to get up you beat her with a stick. Then you raped her.

[4] The complainant was having her period at the time. She was a virgin. She bled badly and suffered significant pain. Afterwards she felt weak and when she tried to stand up she was unable to do so at first. She stayed in her room that afternoon and evening still feeling weak.

[5] You warned her that if she told anyone about what you had done you would kill her. You repeated your threats from time to time and she kept quiet because she believed you. She had no-one to confide in since she was away from home.

[6] On 15 February 2001 you committed a similar offence. On this occasion you forced her to lie down by slapping her. She was a much smaller person than you. Again you threatened her not to tell anyone or else you would kill her. When your wife returned she wanted to know why Moli kept sitting outside on the verandah. You made up a story that you beat her since she was late back from school. When Moli tried to tell the truth you gave her threatening looks to remind her of your threat. She was afraid and could not tell her Aunt what had really happened. From then on you continued to threaten her in other physical ways to keep silent.

[7] As a result of your deeds the complainant became pregnant. Eventually one of her Aunts confirmed she was pregnant, and then the true story came out.

[8] From the bundle of statements I see that your wife Salome became very angry with Moli at her revelation of what you had done. Moli described the events as follows:

“On 15/07/01 Sunday, after lunch, my aunty (nei SALOME) growled at me and told me to lie on my stomach. I did it. She then punched my stomach, kicked and stood on my back. In a fierce voice she told me that she would kill me and my baby if the child is fathered by her husband. I did not say anything at all.”

[9] This is not something you did or said, and you are not to be blamed for the cruelty of others. But what you had done put Moli into this frightening situation and danger. The baby survived fortunately and was born to Moli on 23 October 2001.

[10] Parliament has prescribed the sentence of life imprisonment for rape. Rape is the most serious sexual offence. The courts have reflected increasing public intolerance for this crime by hardening their hearts to offenders and by meting out harsh sentences.

[11] A long custodial sentence is inevitable. This is to mark the gravity of the offence as felt, and correctly so, by the community. Imprisonment emphasizes the public’s disapproval and serves as a warning to others who may hitherto regard such acts lightly. One must not ignore the validity of the imposition of condign punishment for serious crime. Lastly the sentence is set in order to protect women from such crimes: Roberts and Roberts (1982) 4 Cr. App R(S) 8; The State v Lasaro Turagabeci and Others (unreported) Suva High Court Crim. Case No. HAC0008.1996S.

Your Background

[12] You were aged 51 at the time of the offences. You had retired from your job in 1997. You say your wife is supporting you and that you now do small farming at home. I noticed that no-one from your family was present at court to support you.

[13] You also said you were sickly and had injuries on your knees. You asked for forgiveness from the family of the complainant. I asked if this included the complainant, but you maintained that the seeking of forgiveness was from the family. However it is Moli who has suffered most from your conduct and I have not heard of any apology tendered to her. She has remained in court till the end of these proceedings. She, more than anyone else, needs to hear you say “sorry”.

[14] You do not have a clean police record. But most of it has been for minor offences. Your offending was over by 1980; and none of it was for a sexual offence. I disregard your record therefore for the purposes of sentencing in this matter.

[15] You have been out on bail since your first appearance in the Magistrates Court on 10 October 2002.

The Court’s Approach to Rape Sentences

[16] In Mohammed Kasim v The State (unreported) Fiji Court of Appeal Cr. Case No. 14 of 1993; 27 May 1994 the Court of Appeal observed (at p.6):

“We consider that in any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment of seven years. It must be recognized by the Courts that the crime of rape has become altogether too frequent and that the sentences imposed by the Courts for that crime must more nearly reflect the understandable public outrage. We must stress, however, that the particular circumstances of a case will mean that there are cases where the proper sentence may be substantially higher or substantially lower than that starting point.”

[17] In Lasaro Turagabeci (supra) Pain J. said:

“The Courts have made it clear that rapists will be dealt with severely. Rape is generally regarded as one of the gravest sexual offences. It violates and degrades a fellow human being. The physical and emotional consequences to the victim are likely to be severe. The Courts must protect women from such degradation and trauma. The increasing prevalence of such offending in the community calls for deterrent sentences.”

[18] In a case with some similarities to this case Shameem J in The State v Navauniani Koroi (unreported) Cr. App Case No. HAA0050.2002S arrived at a sentence of 12 years and explained:

“Taking the 7 years as the starting point, I increase the term by two years for the young age of the complainant, and a further three years for the fact that she is your daughter. I add a further year for the resulting pregnancy. I reduce the term by one year for the guilty plea and other mitigation...”

This sentence was reduced on appeal to 11 years to give more weight to the plea of guilty which spared the complainant from having to give evidence.

[19] In The State v Samu Seru (unreported) Suva Crim. Case No. HAC0021.2002S the Accused pleaded guilty to 5 counts of rape and was sentenced to 10 years. The court had started at 7 years and increased the sentence because of the aggravating factors. They were, the use of violence and the use of a weapon to subdue the victim into submission.

[20] The victim was of young age and also the daughter of the Accused. The Accused was in a position of trust towards the victim. However in mitigation in that case, it was significant that the Accused had pleaded guilty and spared his daughter from having to give evidence. The Accused was also given a discount for his time spent in custody awaiting trial. He was of previous good character. None of these mitigating factors allowing the court to reduce the appropriate term of imprisonment, save perhaps that I shall treat you as having a clean record, are present in your case.

[21] In The State v Peniasi Senikarawa (unreported) High Court Suva Cr. Case HAC0017.2002S; 20 May 2003 the Accused was sentenced to 11 years imprisonment. Shameem J started on the tariff at 7 years. The mitigation was that the Accused had a good character, was hardworking and struggling to raise his son single handed. But for being in breach of his position of trust to his 14 year old step-daughter, for the beatings he gave her, and for the fact that she had to give evidence twice, the court imposed a further 4 years.

[22] 11 years was ordered by Shameem J in a case where a father had raped a 20 year old daughter: The State v Viliame Tamani (unreported) High Court Suva Cr. Case No. HAC0007.2003S; 4 June 2003. There the Accused had been a first offender and had raised his family without help from his wife who was ill. Again, there were the aggravating factors of the use of violence and the father’s breach of trust.

[23] In Inoke Buli v The State (unreported) Court of Appeal, Fiji Cr. App No. AAU0003.00S; 24 May 2001 the Court of Appeal approved a sentence of 12 years on an Accused for rape of his mentally retarded step-daughter. There was both breach of trust and the Accused had a prior conviction for rape as aggravating factors. The force however appeared to be minimal.

Aggravating Factors

[24] There are unfortunately many aggravating factors in this case. First there is the fact that the victim was a small made person in comparison with you, and only a 14 year old school girl at the time. She was therefore in a vulnerable category, one which the courts must protect.

[25] Second, she was a virgin on the first occasion when you raped her. You beat her into submission. You caused her significant pain, shock, and trauma. She bled. No father would ever wish for his daughter to be initiated into the natural act of sex by being painfully raped by a relative nearly three times her age. It will be hard for the complainant to remove these two incidents from her memory. I do not forget either the months she kept silent for fear of your threats.

[26] Third, the victim became pregnant, at such a young age, by your acts.

[27] Fourth, you were entrusted by the parents of this young girl with their daughter. This arrangement was to give Moli an educational opportunity to improve herself. You were to act in the place of her parents. You broke that trust badly.

[28] Fifth, you persisted in your defence of these charges and forced the complainant to relive her traumatic time in your house by having to give evidence. She had to endure being cross-examined by you.

[29] Sixth and lastly, Moli’s educational opportunity has been brought to an end by what you have done. She is now a mother at a very young age. One can only hope she may get another opportunity to improve herself. But you spoilt her secondary schooling and a large part of her adolescence.

The Sentence

[30] Though the violence in this case was not of the worst type, the complainant was beaten and she had to live in fear of your terrible threat. It was enough that she believed you, albeit naively. The sum total of these aggravating factors makes for an ugly combination of criminal behaviour.

[31] Since the victim was in a vulnerable category, the starting point in the tariff is 7 years. For each of the 6 significant aggravating factors that I have listed, I will add to the 7 years a further year each, making a total sentence on each of the 2 counts of 13 years. I have considered the question of totality, and the sentences on each count therefore will be served concurrently with each other.

[32] In summary you are sentenced as follows:

Count 1 Rape 13 years.

Count 2 Rape 13 years.

The sentence on count 2 is to be served concurrently with that on count 1.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva
Solicitors for the Accused: In Person