State v Cakau [2010] FJHC 141; HAC010.2010 (24 April 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 010 OF 2010
CRIMINAL CASE NO: 380 OF 2008

BETWEEN:

STATE
PROSECUTION

AND:

PIO CAKAU
ACCUSED PERSON

Counsel: State - Mr. Kaisamy
Accused Person - Mr. Lee

Date of Hearing: 16 April 2010
Date of Sentencing: 24 April 2010

SENTENCE

Pio Cakau you were found guilty and convicted in the Magistrates’ Court of Labasa on 18/3/2010 on one count of Rape. The learned Magistrate after convicting you on the evidence at the trial transferred the matter to the High Court for sentencing pursuant to section 190 of the Criminal Procedure Decree 2010.

Facts of the case are that you raped your own niece. The victim was 11 years old at the time of the offence. When she was going home after school you followed her and removed her panty and raped her. When she shouted you covered her mouth. While she was crying you raped her.

The aggravating factors are that you are the uncle of the victim and therefore you are in a position of a special trust and you have breached that trust. The victim is 11 years old and could have expected safety and security from you as uncle. This is surely scar her for the rest of her life and further you raped her while going home after school.

The maximum penalty for rape is imprisonment for life.

In Vishvanandan v The State (2008) FJHC 262; HAAA 065J.2008 (24 October 2008) her Ladyship Justice Shameem in delivering her Judgment stated that the starting point for rape of children to be 10 years imprisonment.

In the case of Drotini v The State (2006) FJCA 26; AAU0001.2005S (24 March 2006) the Court of Appeal affirmed the sentence of 11 years imprisonment for raping the step daughter.

Considering the above factors I take 10 years as the starting point and add another 4 years for the aggravating factors bringing the total to 14 years.

In mitigation it was submitted that you were 39 years old, single, and that you are living with your brothers family. These cannot be considered as meaningful mitigating factors and I reduce 1 year for these factors.

As you have no previous convictions I further give you a discount of 2 years and finally you are sentenced to 11 years imprisonment.

You have 30 days to appeal.

Priyantha Fernando
Puisne Judge

At Labasa
24 April 2010