State v Bulivou [2010] FJHC 382; HAC026.2010 (3 September 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 26 OF 2010

BETWEEN:

STATE

AND:

TOMASI TIKO BULIVOU

Counsel: Ms. Bull - for the State
In Person and Mr. Lee (as Duty Solicitor) - for the Accused

Date of Hearing: 09.08.2010, 13.08.2010, 25.08.2010, 30.08.2010,
31.08.2010, 001.09.2010
Date of Sentence: 03.09.2010

SENTENCE

1. The Accused TOMASI TIKO BULIVOU is charged by the Director of Public

Prosecutions on the following counts.

COUNT 1

Statement of Offence

ATTEMPTED RAPE: Contrary to section 151 of the Penal Code, Cap. 17.

Particulars of Offence

TOMASI TIKO BULIVOU some time between the 1st day of January 2005 and the 31st day of December 2005, at Dreketi, Qamea, in the Northern Division, attempted to have unlawful carnal knowledge of S.C, a female, without her consent.

COUNT 2

Statement of Offence

RAPE: Contrary to sections 149 and 150 of the Penal Code, Cap 17.

Particulars of Offence

TOMASI TIKO BULIVOU some time between the 1st day of January 2006 and the 31st day of December 2006, at Dreketi, Qamea, in the Northern Division, had unlawful carnal knowledge of a girl, namely S.C, without her consent.

COUNT 3

(Representative Count)

Statement of Offence

RAPE: Contrary to sections 149 and 150 of the Penal Code, Cap 17.

Particulars of Offence

TOMASI TIKO BULIVOU some time between the 1st day of January 2007 and the 31st day of December 2007, at Dreketi, Qamea, in the Northern Division, had unlawful carnal knowledge of a girl, namely S. C, without her consent.

COUNT 4

(Representative Count)

Statement of Offence

RAPE: Contrary to sections 149 and 150 of the Penal Code, Cap 17.

Particulars of Offence

TOMASI TIKO BULIVOU some time between the 1st day of January 2008 and the 31st day of December 2008, at Dreketi, Qamea, in the Northern Division, had unlawful carnal knowledge of a girl, namely S. C, without her consent.

COUNT 5

Statement of Offence

DEFILEMENT OF A GIRL UNDER 13 YEARS OF AGE: Contrary to section 155(1) of the Penal Code, Cap. 17.

Particulars of Offence

TOMASI TIKO BULIVOU some time between the 1st day of January 2009 and the 31st day of December 2009, at Dreketi, Qamea, in the Northern Division, had unlawful carnal knowledge of S. C a girl under 13 years of age.

COUNT 6

Statement of Offence

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

Particulars of Offence

TOMASI TIKO BULIVOU some time between the 1st day of February 2010 and the 30th day of April 2010, at Dreketi, Qamea, in the Northern Division, had carnal knowledge of S.C, without her consent.

COUNT 7

(Representative Count)

Statement of Offence

ATTEMPTED RAPE: Contrary to section 151 of the Penal Code, Cap. 17.

Particulars of Offence

TOMASI TIKO BULIVOU some time between the 1st day of January 2008 and the 31st day of December 2008, at Dreketi, Qamea, in the Northern Division, on an occasion other than that alleged in Count 4, attempted to have unlawful carnal knowledge of L. C, a female, without her consent.

COUNT 8

(Representative Count)

Statement of Offence

RAPE: Contrary to sections 149 and 150 of the Penal Code, Cap 17.

Particulars of Offence

TOMASI TIKO BULIVOU some time between the 1st day of January 2008 and the 31st h day of December 2008, at Dreketi, Qamea, in the Northern Division, on an occasion other that those alleged in Counts 4 and 7, had unlawful carnal knowledge f a girl, namely, L. C, without her consent.

COUNT 9

Statement of Offence

INDECENT ASSAULT: Contrary to section 154 (1) of the Penal Code, Cap. 17.

Particulars of Offence

TOMASI TIKO BULIVOU some time between the 1st day of January 2009 and 31st December 2009, at Dreketi, Qamea, in the Northern Division, on an occasion other than that alleged in Count 5, unlawfully and indecently assaulted a girl namely. L.C, by applying and rubbing the cream from a coconut onto the vagina of the said L. C.

2. When the matter was taken up for trial before assessors on 30th August 2010, you pleaded guilty to two counts of rape and pleaded not guilty to other charge.
   
3. The trial commenced and continued till 01/09/2010. When you heard and saw both victims, S.C and L.C, mother of S.C, Dr Inose Vatucicila Voce, and the grand mother of L.C were giving evidence.
   
4. When the case was taken up for further trial on 01/09/2010, you moved for a short adjournment to reconsider your plea. After the adjournment, you informed the Court that you want to plead guilty to other remaining charges also.
   
5. Accepting your request the amended information was read to you in front of the assessors. You, on your own pleaded guilty to all 9 counts in the charge that (including the counts that you pleaded guilty earlier).
   
6. You admitted the fact submitted in the trial by the witnesses. After considering your plea of guilty, I am convinced that you have pleaded guilty to all 9 counts in the information without any promise, threat or inducement. After considering your plea is unequivocal, I convicted you on all 9 counts as charged.
   
7. Now I consider the relevant Law to the 1st count of attempted rape.
   

Section 151 of the Penal Code:

"Any person who attempts to commit rape is guilty of a felony, and is liable to imprisonment for ten years, with or without corporal punishment."

8. You have been charged on 6 counts of rape. The relevant Law is Section 149 and 150 of the Penal Code.
   

149. Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm or by means of false representations to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of the felony termed rape.

150. Any person who commits the offence of rape is liable to imprisonment for life, with or without corporal punishment.

9. Section 207 (1) of the Crime Decree.

"Any person who rapes another person commits an indictable offence.

Penalty – Imprisonment for life."

10. Section 154(1) of the Penal Code:

"Any person who unlawfully and indecently assaults any woman or girl is guilty of a felony, and is liable to imprisonment for five years, with or without corporal punishment."

11. I will now summarize the charges against you.

You have -	One count of Causing Attempted Rape on Siteri Cavunisautu.
	Four counts of Rape on Siteri Cavunisautu under the Penal Code
	One count of Rape on Siteri Cavunisautu under the Crimes Decree
	One count of Attempted Rape on Lavenia Coganimoto Under Penal Code
	One count of Rape on Lavenia Coganimoto under Penal Code
	One count of Indecent Assault on Lavenia Coganimoto Penal Code totaling to nine counts.

12. Now I consider the facts of the case, Siteri Cavunisautu is your sister's daughter. When you 1st attempted to rape she was only 5 years old even before she started her schooling. One day in 2005, you took her to a room, removed her clothes, laid her on the bed and spat on her vagina and attempted to insert your penis on her. When she cried, you abandoned the attempt to rape the infant.

13. If the year of 2006, witness claims that you raped the young infant niece for 5 times, but the Director of Public Prosecutions has preferred only one count for 2006.

14. In the year of 2007, you raped her thrice. But you are charged only on one count of Rape.

15. In 2008 you raped her once.

16. You cross examined the witness and she withstood with your questioning and nothing contradicted in her evidence.

17. L.C gave evidence in court. She revealed that she is 9 years old at present and in 2008, you took her to the bed, made her nude and applied salt to vagina and licked her. You attempted to rape her but it failed. Then you tried to insert a handle of a broom stick.

18. In the year 2009, you went to her place and took her to the bed made her nude and brushed her vagina with a hair brush, thereafter you inserted a fork into her vagina. Subsequently, you took a spoon and tapped her vagina.

19. In the same year, you grabbed her from the plantation and made her nude and applied coconut flesh (The white part of the coconut) and raped her.

20. You have threatened the witness that if she tell this to anyone that you will chop her head off.

21. She was subject to your cross examination and maintain her stance.

22. You have raped two small girls for about 4 years.

23. Now I consider that tariff for attempted rape as per Section 151 of the Penal Code provides imprisonment up to 10 years.

24. The tariff for Attempted Rape is 12 months to 5 years imprisonment. (Aunima v The State)[2001]FJHC 105, per Shameem J.

25. In Bulimaiwai ivi The State [2005] FJHC 261; HAA0068J.2005S (2 September 2005), Shameem stated that:

"Sentences at the upper end of the tariff should be imposed where gratuitous violence in inflicted, where a weapon is used. Where there is a gross breach of trust or where there is a large age gap between complainant and offender. In Hari Chand –v- State (supra) I upheld a 3 year term of attempted rape of his daughter-in-law by the offender. There was no gratuitous violence but there was a gross breach of trust."

26. In Josefa Biu –v- The State HAA085 of 2000, Shameem J upheld the 5 year imprisonment sentence for the attempted rape of an 11 years old child by her uncle.

27. Considering the tariff as per above decide cases, I commence you sentence at 3 years.

28. Aggravating factors which I have discussed under the offence of rape I increase your sentence by 5 years. Now your sentence is 8 years.

29. As I discussed the mitigating circumstances under the offence of rape, I reduce 3 years. Now your sentence is 5 years imprisonment.

30. Punishment for offence of defilement is stated in Section 155 91) of the Penal Code. Imprisonment for life.

31. Now I consider the tariffs.

In Dakai –v- State [2001] FJHC 209; Criminal Appeal 0036.2001 (6 July 2001) Byrne J (as he then was) upheld a sentence of 5 years imposed in the Magistrate's court for the defilement of a girl under 13 years. When Dakai was decided, the maximum penalty for this offence was 5 years. Byrne J considered that the Learned Magistrate did not err in "imposing the maximum sentence allowed in the Magistrate's Court for the offence."

32. The age difference also points to the exploitation of a child. The tariff for defilement is from a suspended sentence to 4 years imprisonment. The higher end of the tariff is reserved for older offenders who are in a position of trust with the victim. (See Etoni Rokowaqa –v- State Criminal Appeal No. HAA 37 of 2004; Elia Donimainasuva –v- State Criminal Appeal No.HAA032 of 2001); Domoni –v- State [2009] FJHC 142; HAA089.2008 (10 July 2009).

33. Considering the nature of the offence and your relationship with the victim children, I commence at 3 years imprisonment.

34. Aggravating factors, I have discussed under the offence of rape. Considering the aggravating factors, I increased your sentence by 2 years. Now your sentence is 5 years imprisonment..

35. Mitigating circumstances was discussed under the offences of rape. Considering those circumstances I reduce 2 years. Now your sentence is 3 years imprisonment.

36. Now I consider the offence of indecent assault as per Section 154. You can be imposed on imprisonment up to 5 years.

37. The maximum penalty for indecent assault is 5 years, though the tariff is 1 – 4 years imprisonment. (Ratu Veretariki Kadavi v The State) Criminal Appeal No. HAA0049 of 2000; Ratu Penioni Rakota –v- State Cri. App. No. HAA0068 of 2002, Bavadra v the State [2003] State v Govind [2010] FJHC 221; HAA013.2010S (30 June 2010).

38. Considering the relationship between you and the victim and the age I commence your sentence at 3 years.

39. Aggravating factors are discussed under the offence of rape. Considering those factors, I increase your sentence by 2 years. Now your sentence is 5 years.

40. Considering your mitigating circumstance which was considered under the offence of rape, I reduce 2 years. Now your sentence is 3 years.

41. Now I consider the offence of rape. Section 150 of the Penal Code says life imprisonment can be imposed.

42. Section 207(1) of the Crimes Decree provides life imprisonment for the offence of rape.

43. Now I consider the tariff to the offence of Rape.

In the case of State v Cakau FJHC 141; HAC010.2010 (24 April) Fernando J highlighted the cases where Shameem J laid down the starting point for the rape of children and also the case of Drotini v The State (2006) FJCA 26; AAU0001.2005S (24 March 2006) where the FCA had confirmed the sentence of rape to 11 years. In State v Cakau the accused was sentenced to 11 years.

In the case of State v Simione Talenasila has the exact same facts and circumstances of this case where the accused indecently assaulted and raped his daughter. The matter was transferred up for sentencing and the accused after all considerations was sentenced to 16 years imprisonment.

In State –v- Prabhu Lal [2007] HAC 3/05B Sentence 24 May 2007 per Shameem J; on one count of indecent assault and two of rape, rape of then 9 year old daughter on 2 occasions over 3 years, instead of giving her love and protection, father made her a target of his lustful desires causing her not only physical pain but unimaginable mental trauma, violated her, and broke all the rules not only of a father daughter relationship but of civilised human society. The facts case merited a sentence of more than 11 years but it is not so manifestly lenient that warrants interference by the Court.

44. You were the maternal uncle to one child that mean, the victim is your sister's daughter. To the other victim, you are a grand uncle. Considering all circumstances, I commence your sentence at 11 years imprisonment.

45. Now I consider the aggravating factors.

1. You are a close relative of both victims.
   
2. You betrayed the bondage between uncle and niece.
   

100. Victims were infants aged 5 years at the time of 1st incident.
     

4. You have committed these offences repeatedly for a period of time.
   
5. You have ruined the child victim's future of these two.
   
6. You have threatened the child victim with death.
   
7. The cruel manner you committed the offence.
   

Considering all aggravating factors, I increase 7 years. Now your sentence is 18 years imprisonment.

46. Now I proceed to consider your mitigating circumstances.

1. For two counts you have pleaded guilty at the beginning. Pleaded guilty to the other counts subsequently.
   
2. You are married with 3 children.
   
3. You are remorseful.
   
4. Period in remand.
   

Considering your mitigating circumstances, I reduce 2 years. Now your senesce is 16 years imprisonment.

47. Now I summarize the sentence.

Count No. 1	Attempted Rape	5 years imprisonment
Count No. 2	Rape
Count No. 3	Rape	16 years imprisonment
Count No. 4	Rape	16 years imprisonment
Count No. 5	Defilement	5 years imprisonment
Count No. 6	Rape	16 years imprisonment

These above offence were committed on your niece. Considering your plea, even at later stage, I order the sentence to be operated concurrently.

48.

Count No. 7	Attempted Rape	5 years imprisonment
Count No. 8	Rape	16 years imprisonment
Count No. 9	Indecent Assault	3 years imprisonment

There above offence were committed on another very young child. Considering your plea and all the circumstances, I order the sentence to be operated concurrently.

49. Now you have two 16 years imprisonment sentences. Considering the gravity of the offence especially the children were nearly 5 years old when you commenced these sexual offences against them. Therefore I order part of the sentence to run concurrent and the other part to run consecutive.

50. Your second sentence of 16 years imprisonment will operate from 4th year of the 1st sentence. You will serve a total of 20 years imprisonment.

51. Considering the future of these children and others in your society, I invite myself the attention of Section 18(1) of the Sentencing and Penalties Decree and impose 16 years as non parole term.

52. 30 days to appeal.

53. Name and identity of the victims are suppressed due to the suppressing order issued by me on the request of the State Counsel.

S. Thurairaja
JUDGE

Solicitors: - Office of the Director of Public Prosecutions for State
- Accused In Person (Office of the Legal Aid Commission as duty Solicitor)