State v Siga [2010] FJHC 507; HAC029.2009 (16 November 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 029 OF 2009

BETWEEN:

THE STATE

PROSECUTION

AND:

TIMILAI SIGA
ACCUSED

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

Date of Sentence: 16 November 2010

SENTENCE

Timilai Siga you stand convicted of 5 counts of Rape on your step daughter Varanisese Dimati aged 17 years and of 3 counts of Rape on your step daughter Ritalina Rosemary Bolewale aged 11 years, following plea of guilty on all counts.

The facts of this case are both the victims are your step daughters. The victims were residing with you in the same house. On the 1st and 2nd occasions, you raped the 1st victim, Varanisese in the bedroom, after tying her mouth with a cloth. You warned her not to tell anyone. She didn't tell any one as she was frightened on the 1st occasion. 2nd occasion, although she told her mother she didn't believe her. 3rd occasion you raped her forcefully in the cassava plantation. You raped the victim Varanisese on five occasions within a period of 2 years.

The 2nd victim, Ritalina Rosemary Bolewale, aged 11 years, was raped by you on 3 occasions. On 1st occasion, you tied her hands, threatened her not to tell anyone. You entered your penis into her vagina, after ejaculation, you left her crying. Second occasion, you raped her in the bedroom and warned her not to tell any one, or something bad might happen to her. On the 3rd occasion, you asked her to massage you and you held her hand and raped her.

Both the victims are your step daughters, aged 17 and 11 years. Offence of rape of this nature has become more frequent in Fiji. Victims are your step daughters, and it is a gross breach of trust. You are expected to look after them as the step father. Both the step daughters were raped for a long period on different occasions and it will surely scar them for the rest of their lives. It is a serious aggravating factor. This kind of sexual offenders must be deterred from committing such offences.

In the case of State v Talenasila (2010) FJHC 84; HAC 011.2010 (12 March 2010) his Lordship Justice Madigan delivering his judgment, quoted cases to reflect on the seriousness of the charge of Rape and said:

"rape is the most serious sexual offence. The courts have reflected increasing public intolerance for his 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 assault were a gross breach of trust. 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.

Finally he sentenced the accused to 16 years imprisonment.

In case of State v AV (2009) FJHC 24; HAC 192.2008 (21 February 2009) Justice Goundar said:

"Rape is the most serious form of sexual assault... Society cannot condone any form of sexual assaults on children... Sexual offenders must be deterred from committing this kind of offences."

The maximum punishment for rape is life imprisonment. The tariff for rape of a child is between 10 – 14 years imprisonment (Mutch v State Cr. App. AAU 0060/99, Mani v State, Cr. App. No. HAA 0053/021, State v Saitava, Cr. Case No. HAC 0/07, State v Tony Cr App No. 003/08.

On each count of Rape on Varanisese Dimati aged 17 years (Counts 1 -5), I take 12 years imprisonment as the starting point and add 7 years for the above aggravating factors.

In mitigation, it is submitted that you are a 1st offender and that you are remorseful for your actions. You are the sole breadwinner of the family. You pleaded guilty, saving time of Court and preventing the victims undergoing the mental trauma again, by relating the story in Court.

Considering all the above mitigating factors, including your early plea of guilty, your previous good conduct, and your period in remand, I reduce 4 years making a total of 15 years imprisonment on counts No. 1, 2, 3, 4 and 5. Sentences to run concurrently.

On each count of Rape on Ritalina Rosemary Bolewale aged 11 years (count 6, 7, 8) I take 13 years as starting point, and add 7 years for the aggravating factors.

I reduce 4 years for your mitigating factors including your early plea of guilty, and previous good conduct making a total of 16 years imprisonment on counts No. 6, 7, and 8. Sentences to run concurrently.

Considering the circumstances of the case, I make order that a minimum sentence of 13 years imprisonment should be served by you.

Finally your sentence is:

1st Count 15 years imprisonment

2nd Count 15 years imprisonment

3rd Count 15 years imprisonment

4th Count 15 years imprisonment

5th Count 15 years imprisonment

6th Count 16 years imprisonment

7th Count 16 years imprisonment

8th Count 16 years imprisonment

All sentences to run concurrently.

You have 30 days to appeal.

Priyantha Fernando
Judge

At Labasa
16 November 2010