State v NK [2010] FJHC 252; HAC104.2009S (16 July 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 104 OF 2009S

STATE

V

N K

Counsels: Ms. S. Tagivakatini for the State Ms. S. Vaniqi for the Accused

Hearing: 25th June 2010
Sentence: 16th July 2010

SENTENCE

1. On 25th June 2010, in the presence of your counsel, you voluntarily pleaded guilty to the following charges:

FIRST COUNT

[Representative Count]

Statement of Offence

INCEST BY MALE: contrary to section 178(1) of the Penal Code, Cap. 17.

Particulars of Offence

N K between the 1st day of March 1989 to the 31st of January 1990 at Nabilabila Settlement, Natila, Bau, Tailevu in the Eastern Division, had carnal knowledge of M M who was to his knowledge his daughter.

SECOND COUNT

[Representative Count]

Statement of Offence

INCEST: contrary to section 178(1) of the Penal Code, Cap. 17.

Particulars of Offence

N K between the 1st day of July 1991 to the 30th day of April 1992 at Nabilabila Settlement, Natila, Bau, Tailevu in the Eastern Division, had carnal knowledge of M M who was to his knowledge his daughter.

THIRD COUNT

[Representative Count]

Statement of Offence

INCEST BY MALE: contrary to section 178(1) of the Penal Code, Cap. 17.

Particulars of Offence

N K between the 1st day of December 1998 to the 31st day of October 1999 at Nabilabila Settlement, Natila, Bau, Tailevu in the Eastern Division, had carnal knowledge of M M who was to his knowledge his daughter.

FOURTH COUNT

[Representative Count]

Statement of Offence

INCEST: contrary to section 178(1) of the Penal Code, Cap. 17.

Particulars of Offence

N K between the 1st day of October 2004 to the 31th day of August 2005 at Nabilabila Settlement, Natila, Bau, Tailevu in the Eastern Division, had carnal knowledge of M M who was to his knowledge his daughter.

FIFTH COUNT

[Representative Count]

Statement of Offence

INCEST: contrary to section 178(1) of the Penal Code, Cap. 17.

Particulars of Offence

N K between the 15th day of February 2009 at Nabilabila Settlement, Natila, Bau, Tailevu in the Eastern Division, had carnal knowledge of M M who was to his knowledge his daughter.

2. The prosecutor then read her summary of facts in court. Briefly, they were as follows. You are 58 years old now, married with seven children, aged between 24 and 38 years old. Your eldest is M M, who is aged 38 years old, and she was the victim, in this matter. When she was 18 years old, you started to abuse her sexually. Between the 1st March 1989 to 31st January 1990, you repeatedly had sexual intercourse with M, well knowing she was your daughter. She later gave birth to a child, as a result of this relationship.

3. Then, between the 1st July 1991 to 30th April 1992, you again continued to repeatedly have sexual intercourse with M, well knowing she was your daughter. She again gave birth to another child, as a result of this relationship. Between the 1st December 1998 and 31st October 1999, you again repeatedly had sexual intercourse with M, well knowing she was your daughter. Again, M gave birth to another child, as a result of this relationship.

4. Between the 1st October 2004 to 31st August 2005, you again repeatedly had sexual intercourse with M, well knowing she was your daughter. Again, M gave birth to another child as a result of his relationship. On 15th February 2009, you again had sexual intercourse with M, well knowing she was your daughter.

5. At the end of the prosecutor presenting her summary of facts, the court checked with your counsel, to see that all the ingredients of the offence of "incest", contrary to section 178(1) of the Penal Code, Chapter 17, were admitted by you. Your counsel, on your behalf, admitted that, at the material times mentioned in counts Nos. 1, 2, 3, 4 and 5, you had sexual intercourse with MM, and you well knew at the time that, she was your daughter. On that basis, the court found you guilty as charged on all five counts, and convicted you accordingly on each count. The court noted that you have 12 previous convictions between 1968 and 1985, but will disregard these convictions because they are more than 10 years old. The court has noted your antecedent report, and has carefully considered your written plea in mitigation. It has also carefully considered the submissions tendered by the parties.

6. In this case, M was 18 years old, when you first had sexual intercourse with her. The maximum penalty is therefore 20 years imprisonment (section 178(1) of the Penal Code, Chapter 17). The tariff for incest depended on the age of the victim. If the victim was aged 13 years old and under, the tariff would be a sentence between 10 to 15 years imprisonment. If the victim was aged between 13 to 16 years old, the tariff would be a sentence between 7 to 10 years imprisonment. If the victim was aged over 16 years old, the tariff would probably be a sentence between 4 to 7 years imprisonment: The State v Samuela Ledua, Criminal Case No. HAC 0003 of 2004, High Court, Suva; Babu Ram v The State, Criminal Appeal No. HAA 0023 of 2004, High Court, Lautoka; Lata Prasad v The State, Criminal Appeal No. HAA 059 of 2007, High Court, Suva. The actual sentence passed will depend on the mitigating and aggravating factors.

7. In your case, the aggravating factors were as follows:

(i) This was a case involving a serious breach of parental trust. In any family, a father is a trusted person, tasked with the responsibility of guiding and counseling his children, to become productive and confident members of society. It is his role to ensure that his children are clothed, fed and a roof is put over their heads. You fulfilled these roles, until M turned 18 years old in 1989, when you started to breach her trust in you, by forcefully having sexual intercourse with her. At the time, you well knew she was your daughter;

(ii) Then in the next 20 years, that is, from 1989 to 2009, you deliberately turned M’s world into a living hell. You treated her, not as a daughter, but as a sex object. You repeatedly forced her to have sexual intercourse with you in the early hours of the morning, when your wife and family were fast asleep, in your family house. You repeatedly forced her to go to the family gardens, away from the prying eyes of others, and repeatedly had sex with her. She was afraid to tell anyone, because you threatened her. When she refused to have sex with you, you often assaulted her repeatedly. She complained to her mother, but she did nothing because they feared you. You completely dominated her life. She knew no other man but you. You left her no room to live;

(iii) As a result of the above, you unashamedly fathered her four children. You have deliberately blurred the role of a father and grandfather visa vi your daughter and your children and grandchildren. Your eldest child with your daughter is now suicidal. You have ruined your family. They lived in fear of you, because you continually assaulted them, if they argued against you. You dominated not only your daughter’s life, but your whole family’s life. Instead of being a pillar of strength to your family, you continued to undermine them from within, for the last 20 years. Your daughter has had enough of it, and asked that the "full brunt of the law" be brought on you.

8. The mitigating factors in your case were as follows:

(i) You pleaded guilty to the charges, thus saving the court’s time, and avoiding the need for the complainant to relieve her ordeals in the courtroom by giving evidence;

(ii) You have been remanded in custody for the last 9 months;

(iii) Although you have 12 previous convictions between 1968 and 1985, I will treat you as a 1st offender, because you have no conviction in the last 10 years.

9. On a count of incest, I will start with a sentence of 7 years prison. I add 4 years for the aggravating factors, making a total of 11 years imprisonment. For the mitigating factors, I deduct 3 years from the 11 years, leaving a balance of 8 years imprisonment. I sentence the accused to 8 years imprisonment, on each count of incest.

10. In summary, I sentence you as follows:

(i) Count No. 1 - 8 years imprisonment

(ii) Count No. 2 - 8 years imprisonment

(iii) Count No. 3 - 8 years imprisonment

(iv) Count No. 4 - 8 years imprisonment

(v) Count No. 5 - 8 years imprisonment

11. A consecutive sentence would lead to a total of 40 years imprisonment. This would be unjust on you, given the principle of the totality of sentencing. I have therefore decided to make the sentences in count Nos. 1, 2, 3 and 4 concurrent to each other, that is, a total sentence of 8 years imprisonment. I will make the sentence in count No. 5 consecutive to the sentence in count No. 4, making a total sentence of 16 years imprisonment.

12. In summary, the accused is to serve a total sentence of 16 years imprisonment, effective forthwith. Pursuant to section 18(1) of the Sentencing and Penalties Decree 2009, the accused is not to be released on parole until he has served 11 years imprisonment.

13. To assist the victims of the accused’s offending recover from their ordeal, and to protect their privacy, the victim, her children’s and the accused’s name are permanently suppressed. The mass media is asked to take on board the above.

Salesi Temo
ACTING JUDGE

AT Suva
16th July, 2010