State v VV [2010] FJHC 193; HAC084.2009S (7 June 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 084 OF 2009S

STATE

v

VV

Counsels: Ms. J. Cokanasiga for the State
Ms. S. Vaniqi for the Accused

Hearing: 17th, 19th, 21st and 24th May, 2010
Summing Up: 27th May, 2010
Judgment: 28th May, 2010
Sentencing: 7th June, 2010

SENTENCE

1. In a judgment delivered on 28th May 2010, the court found you guilty as charged on one count of "indecent assault", contrary to section 154(1) of the Penal Code, Chapter 17 (ie. count No.1), two counts of "rape", contrary to sections 149 and 150 of the Penal Code (ie. count Nos. 2 and 3), and one count of "incest", contrary to section 178(1) of the Penal Code (ie. count No.6). You were convicted as charged on all those counts.

2. The brief facts of the case were as follows. On 9th November 1995, you married MD. On 15th October 1996, you two had your first child, SM, the complainant. She was your eldest daughter. You then had two more girls from your wife, until you two separated in 2005. The custody of the girls were given to you. In January 2006, you and the three girls resided at .. Wailea Street Vatuwaqa. Your abuse on SM started at this address. Between the 26th and 27th January 2006, you indecently assaulted SM, who was 9 years 3 months old at the time. You indecently kissed her, touched her breast and fondled her vagina.

3. You then moved to another residence, at Lot . Vusavusa Road, Vatuwaqa in February 2006. Between the 11th and 18th February 2006, your abuse on SM reached another level. One night you woke SM from her sleep, told her to take off her clothes, then you raped her by forcefully inserting you erected penis into her vagina, until you ejaculated. SM did nothing and said nothing. You then next shifted to ... Fletcher Road, Vatuwaqa with the three girls. At that address, you again forced yourself on SM, between the 19th and 28 February 2006. You forcefully inserted your erected penis into S’s vagina in the bathroom. You carried on for about 3 minutes, until S pleaded for you to stop, as it was hurting her. You did stop, had your bath and went out of the bathroom.

4. In May 2006, you next moved in with a pastor at ...... Settlement, Newtown. You took your three girls with you. Between the 1st and 31st May 2006, you again forced yourself on S, who was aged 9 years 7 months, at the time. One night, you told S to take off her pants, you then massaged your penis with oil, and then forcefully inserted it into her vagina, until you ejaculated.

5. The court has carefully read your antecedent report, and your well prepared written plea in mitigation. It has also read the victim’s impact report. The court noted you are first offender, at the age of 42 years old. It also noted that you are divorced, with three young daughters. You are a pastor in a Christian church, and you are very remorseful for the offences.

6. You have committed three sexual offences against your daughter. In terms of seriousness, the rape offence is the most serious, followed by incest and then indecent assault. We will begin with the offence of rape.

7. Rape carries a maximum sentence of life imprisonment. Since SM was aged 9 years 4 months at the time of the rape, the case is really about the rape of a child. The tariff for the rape of a child is a sentence between 10 to 13 years imprisonment. See State v Lepani Saitava, Criminal Case No. HAC 10 of 2007, High Court, Suva; Tevita Poese v The State, Criminal Appeal No. AAU0010 of 2005, Fiji Court of Appeal; State v Fong Toy, Criminal Appeal Case No. HAA 003 of 2008, High Court, Suva; State v Nacanieli Marawa, Criminal Case No. HAC 016 of 2003, High Court, Suva. The actual sentence passed will depend on the presence or otherwise of strong mitigating and/or aggravating factors.

8. Committing "incest" against a child under 13 years carries a maximum penalty of life imprisonment. The tariff for incest against a child under 13 years old is a sentence between 10 to 14 years imprisonment: Babu Ram v The State, Criminal Appeal No. HAA 0023 of 2004L, High Court, Lautoka. The actual sentence will again depend on the presence or otherwise of strong mitigating and/or aggravating factors.

9. The maximum sentence for "indecent assault" is 5 years imprisonment. The tariff is a sentence between 1 to 4 years imprisonment: Ratu Penioni Rakota v The State, Criminal Appeal No. HAA 068 of 2002, High Court, Suva; State v Viliame Tamani,Criminal Case No. HAC 007 of 2003S, High Court, Suva. Again the actual sentence passed, will depend on the presence or otherwise of strong mitigating and/or aggravating factors.

10. The aggravating factors in this case were as follows:

(i) Serious breach of parental trust. S was 9 years 4 months old when you indecently assaulted her, and then raped her twice in February 2006. She was already traumatized by the break up of your family in 2005. She looked to you for fatherly support and guidance, in her young life. She trusted you as a father. You were supposed to respond in kind. You were supposed to guide and counselled her to become a strong and confident young girl. However, you did exactly the opposite. You ruined her world by indecently assaulting her, and raping her twice. Then you committed incest on her.

(ii) Your daughter S appears to be emotionally scarred for life. According to the victim impact report, she repeatedly has emotional mood swings. At times, she cries without a reason. She has very low self esteem. She is frightened of you, and frighten most of the time. She gets so angry easily, and wants to be left alone on most occasions. She stares a lot. Her school grades have deteriorated. She shuts down when questioned. On occasions, she changes from a happy little girl to an angry one, and then a dump one.

(iii) According to her medical report, dated 12th June 2009, at the age of 12 years 8 months old, S is sexually active. She has been touched by a cousin, and according to the report, a shopkeeper in Rewa Street performed oral sex on her. These are the by-products of your offending. You turned your own daughter into this kind of world. Instead of living her life as a young innocent girl, she is now being exposed to the above kind of world. In a sense, your have ruined her life as a child, given your offending.

(iv) Through your offending, you have shown a total disregard to S’s right to live a happy and peaceful life, not only as a child, but also when she grows into the adult world.

11. The mitigating factors were as follows:

(i) At the age of 42 years old, this is your first offence.

(ii) You pleaded guilty to the indecent assault charge (count No.1) at the beginning of the trial.

(iii) You are remorseful.

(iv) You have spent a few weeks in prison, while being remanded in custody.

12. On the rape charge, I start with a sentence of 12 years imprisonment. I add 5 years for the aggravating factors, making a total of 17 years. For the mitigating factors, I deduct 2 years from the 17 years, leaving a balance of 15 years imprisonment.

13. On the incest charge, I start with a sentence of 11 years imprisonment. For the aggravating factors, I add 4 years, making a total of 15 years imprisonment. For the mitigating factors, I deduct 1 year from the 15 years, leaving a balance of 14 years imprisonment.

14. On the indecent assault charge, I start with a sentence of 2 years prison. I add 2 years for the aggravating factors, making a total of 4 years. For the mitigating factors, I deduct 1 year, leaving a balance of 3 years.

15. I sentence you as follows:

Count No. 1	indecent assault	3 years imprisonment
Count No. 2	rape	15 years imprisonment
Count No. 3	rape	15 years imprisonment
Count No. 6	incest	14 years imprisonment

16. Given the principle of the totality of sentence, I order all the above sentences to be made concurrent to each other, that is, a total sentence of 15 years imprisonment.

17. To assist S recover from her ordeal, her name, including that of her father, are suppressed permanently, to protect her privacy.

Salesi Temo
ACTING JUDGE

AT Suva
7th June 2010