State v Saisai [2010] FJHC 375; HAC033.2010 (2 September 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 33 OF 2010

BETWEEN:

STATE

AND:

LAISENIA SAISAI

Counsel: Mr. Kaisamy - for the State
Mr. Lee - for the Accused

Date of Hearing: 30.08.2010
Date of Ruling: 02.09.2010

SENTENCE

1. The Director of Public Prosecution has preferred a charge against you in the following manner.

LAISENIA SAISAI is charged with the following offence:-

COUNT 1

Statement of Offence

RAPE: Contrary to Section 207 (1) (3) of the Crimes Decree No. 44, 2009.

Particulars of Offence

LAISENIA SAISAI sometimes in the month of April 2010 at Yadua Island, Bua in the Northern Division had unlawful carnal knowledge with UNAISI ADIBABASIGA a girl under the age of 13 years.

COUNT 2

Statement of Offence

RAPE: Contrary to Section 207 (1) (3) of the Crimes Decree No. 44, 2009.

Particulars of Offence

LAISENIA SAISAI sometimes in the month of June 2010 at Yadua Island, Bua in the Northern Division had unlawful carnal knowledge with UNAISI ADIBABASIGA a girl under the age of 13 years.

2. When your case was taken up before the Learned Magistrate on the 23rd August 2010, you have pleaded guilty to the charge in the information. On accepting your plea of guilty the Learned Magistrate had referred the matter to the High Court for sentencing.

3. When the matter was taken up at the High Court on the 30th August 2010, plea was taken afresh. Where you have pleaded guilty and admitted the facts of the case also. After considering your plea of guilty is unequivocal, I convicted you for the charge set out in the information.

4. You were found guilty for rape which is punishable under Section 207(1) (3) of the Crimes Decree 2009.

5. Section 207(1) (3) of the Crimes Decree states as follows:

207.-(1) Any person who rapes another person commits an indictable offence.

Penalty – Imprisonment for life.

(3) For this section, a child under the age of 13 years is incapable of giving consent.

6. As per the above section the punishment, is imprisonment for life.

7. Now I consider the tariff to the offence.

In the case of Drotini v The State [2006] FJCA 26; AAU001.2005S (24 March 2006) reflected on the seriousness of the offence and that the victim was the step daughter of the appellant, and at the time of the first offences, the victim was nine or ten years old. Hence upheld the 11 year sentence. However before giving the ruling the court acknowledged that the offence warrants a more severe punishment.

"We consider that the facts of this case merited a sentence of more than eleven years but we do not consider the sentence so manifestly lenient that we should interfere."

This gives a clear indication on where the courts stand with regards to sexual abuse of children.

8. In the case of State v Talenasila [2010] FJHC 84; HAC011.2010 (12 March 2010) his Lordship Justice Madigan when delivering his judgment quoted cases to reflect on the seriousness of charge of 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 sentence."

His Lordship then stated:

"The rape in the present case and the indecent assaults were a gross breach of trust. A 14 year old is still not mature and the animal behaviour of her father will surely scar her for the rest of her life. The Courts cannot ignore the severity of such behaviour. It is a breach of trust of the worst kind and a destruction of a father/daughter relationship."

9. In the case of State v Cakau [2010] FJHC 141; HAC010.2010 (24 April 2010) his Lordship Justice Priyantha Fernando when delivering his sentence he also reflected on the nature of the offending:

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.

Finally his Lordship sentenced the accused to 11 years imprisonment.

10. Considering the above cases the tariff will be from 11 years to 16 years.

11. Considering the nature of the offence, I commence your sentencing at 14 years.

12. Considering the aggravating factors as follows.

1. The victim was 12 years and 8 months old.
   
2. The victim is your niece.
   

100. You have raped the victim more than one occasion.
     

I increase 2 years to your sentence. Now your sentence is 14 years.

13. Now I consider the mitigating circumstances.

a) You have pleaded guilty at the very first opportunity.

b) You are a first offender.

c) You are 24 years old.

d) You are remorseful.

Considering all above mitigating factors, I reduce 3 years. Now your sentence is 11 years imprisonment.

14. You took undue advantage of the relationship with the victim and betrayed the uncle-niece bondage. Therefore your sentence is 11 years imprisonment.

15. 30 days to appeal.

S. Thurairaja
JUDGE

Solicitors: - Office of the Director of Public Prosecutions for State
- Office of the Legal Aid Commission for Accused