State v N.K. [2010] FJHC 510; HAC155.2010 (16 November 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 155 OF 2010

BETWEEN:

THE STATE

AND:

N.K.

Counsels: Ms. S. Hamza with Mr. F. Lacanivalu for the State
:Accused in Person

Date of Hearing: 9th, 10th, 11th and 12th November 2010
Date of Sentence: 16th November 2010

SENTENCE

1. To prevent the identity of the victim child the State has obtained suppression order of name and identity. Accordingly the name and the identity of the victim and the Accused are suppressed.
   
2. The Director of Public Prosecution had preferred the following charges against the Accused.
   

"NK is charged with the following offences:

FIRST COUNT
(Representative Count)
Statement of Offence

INDECENT ASSAULT ON A FEMALE: Contrary to Section 154 (1) of the Penal Code (Cap 17)

Particulars of Offence

NK between the 26th day of January 2009 and 1st May 2009 at Nasinu in the Central Division, indecently assaulted a girl namely VS.

SECOND COUNT

Statement of Offence

RAPE: Contrary of Sections 149 and 150 of the Penal Code (Cap 17).

Particulars of Offence

NK on the 1st day of May 2009 at Nasinu in the Central Division had unlawful carnal knowledge of a girl namely VS without her consent.

THIRD COUNT
(Representative Count)

Statement of Offence

INDECENT ASSAULT ON A FEMALE: Contrary to Section 154 (1) of the Penal Code (Cap 17).

Particulars of Offence

NK between the 18th day of May 2009 and 21st day of August 2009 at Nasinu in the Central Division, indecently assaulted a girl namely VS.

FOURTH COUNT
(Representative Count)

Statement of Offence

RAPE: Contrary of Sections 149 and 150 of the Penal Code (Cap 17).

Particulars of Offence

NK between 18th day of May 2009 and 4th day of December 2009 at Nasinu in the Central Division, had unlawful carnal knowledge of a girl namely VS without her consent.

FIFTH COUNT
(Representative Count)

Statement of Offence

RAPE: Contrary of Section 207 (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NK between the 1st day of February 2010 and 28th day of February 2010 at Nasinu in the Central Division, had carnal knowledge of a girl namely VS without her consent."

3. Initially the Accused was charged on 20 Counts. Subsequently State amended the charge sheet and the new charge sheet contains 5 counts. When the charge sheet was read on the 04/11/2010 the Accused pleaded guilty to the 1st Count and pleaded not guilty to other 4 Counts.
   
4. Since the accused pleaded not guilty to 2nd, 3rd, 4th and 5th Counts trial commenced on the 9th November 2010.
   
5. Accused challenged the cautioned interview, therefore voir dier inquiry conducted and the court ruled that the cautioned interview is admissible.
   
6. Trial before the assessors commenced on 10/11/2010 and the Prosecution led the evidence of the victim VS, her aunt, uncle, grandmother, Doctor, the investigating Officer.
   
7. State Counsel closed the case for the prosecution and the Court being satisfied on establishment of a prima facie case, called for the defence. Accused remained silent and did not call any witness (even though the listed witness was available in Court) and closed the case for the defence.
   
8. State Counsel made her closing address to the assessors. Accused moved for an adjournment and informed the Court that he wants to change his plea. Charges were read again and the accused pleaded guilty to all Counts.
   
9. Considering the nature of the evidence and the plea of the Accused to be free from any promises, threat or inducement Court found him guilty to all Counts as charged.
   
10. For the purpose of sentencing I briefly discuss the facts of the case. The accused and the victim are relatives. Victim was 17 years at the time of the incident had come from far away island to attend school in south of Viti Levu. The accused was the guardian. On the 1st occasion you were touching and fondling with her breast.
    
11. Subsequently you had penetrative sexual intercourse with the victim. Initially you took up the defence of consent, but the victim vehemently objected and submitted that she had never consented the sexual intercourse or touching her breast and vagina.
    
12. Now I consider the charge against you. You have pleaded guilty for 2 counts of indecent assault and two counts of rape under the Penal Code and one count of rape under Crimes Decree.
    
13. Now I consider the Law on Indecent Assault, Section 154 (1) of the Penal Code states as follows:
    

"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."

14. You have pleaded guilty to two Counts of indecent assault punishable under Section 154 (1) of the Penal Code. As per the section the maximum punishment is 5 years imprisonment.
    
15. Now I consider the tariff to the offence. Justice Shameem in Rokota vs State Criminal Appeal No. HAA0068 of 2002 identified some of those factors after reviewing earlier cases, although the list is not exhaustive. Shameem J said:
    

"From these cases a number of principles emerge. Sentences for indecent assault range from 12 months imprisonment to 4 years. The gravity of the offence will determine the starting point for the sentence. The indecent assault of small children reflects on the gravity of the offence. The nature of the assault, whether it was penetrative, whether gratuitous violence was used, whether weapons or other implements were used and the length of time over which the assaults were perpetrated, all reflects on the gravity of the offence. Mitigating factors might be the previous good character of the accused, honest attempts to effect apology and reparation to the victim, and a prompt plea of guilty which saves the victim the trauma of giving evidence.

These are the general principles which affect sentencing under section 154 of the Penal Code. Generally, the sentence will fall within the tariff, although in particularly serious cases, a five year sentence may be appropriate. A non-custodial sentence will only be appropriate in cases where the ages of the victim and the accused are similar, and the assault of a non-penetrative and fleeting type. Because of the vast differences in different types of indecent assault, it is difficult to refer to any more specific guidelines than these."

16. Considering the tariff I commence your sentence at 2 years imprisonment.
    
17. Now I consider the aggravating circumstances of this case.
    

(a) The victim was 17 years old girl.

(b) You are 54 years old.

(c) You are her uncle.

(d) Victim was entrusted to you by her parents for schooling.

(e) You betrayed the trust between uncle and niece.

(f) You repeatedly committed these offences on her.

(g) You made the victim pregnant

(h) Your act traumatized the child, even now, she has not overcome the trauma.

(i) You made the child to feel useless and to hate herself.

(j) You not only ruined the child's education but also ruined her entire future.

18. Considering above aggravating factors I increase 3 years. Now your sentence is 5 years imprisonment.
    
19. Now I consider the mitigating circumstances.
    
    • (a) Your period in remand.
      
    • (b) You had pleaded guilty for indecent assault at earlier stage and other counts at the end of case.
      
    • (c) You are the sole bread winner of your family which consists of you, wife and 8 children.
      
    • (d) You have a disabled child who needs medication.
      
    • (e) You claim, you are remorseful.
      
    • (f) Your age (it can be favourable and against to you)
      
    • (g) You are a first offender.
      
20. Considering the mitigating circumstances I reduce 2 years. Now your sentence is 3 years imprisonment.
    
21. Now I consider the offence of Rape. You were charged under Section 150 of the Penal Code and Section 207 (2) of the Crimes Decree. In both law, the maximum punishment for Rape is life imprisonment.
    
22. Now I consider the tariff for the offence of Rape of a child is between 10 to 16 years imprisonment. In William Christopher Millbery & two others vs. R (2002) (EWCA Crim. 2891 (09 December 2002) the Court held
    

"22. The Panel confirms the 15 years and upwards starting point for a campaign of rape. This is recommended where the offender has repeatedly raped the same victim over a course of time as well as for those cases involving multiple victims."

23. Further the Court observed in Millbery v R (supra):
    

"60....we note that the Court's prior to the guideline were regarding relationship rape as serious and deserving heavy sentence."

24. In Mohammed Kasim v The State (unreported) Fiji Court of Appeal Cr. Case No. 14 of 1993; 27 May 1994 the Court of Appeal observed (at p.6):
    

"We consider that in any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment of seven years. It must be recognized by the Courts that the crime of rape has become altogether too frequent and that the sentences imposed by the Courts for that crime must more nearly reflect the understandable public outrage. We must stress, however, that the particular circumstances of a case will mean that there are cases where the proper sentence may be substantially higher or substantially lower than that starting point."

25. In Lasaro Turagabeci (supra) Pain J. said:
    

"The Courts made it clear that rapists will be dealt with severely. Rape is generally regarded as one of the gravest sexual offences. It violates and degrades a fellow human being. The physical and emotional consequences to the victim are likely to be severe. The Courts must protect women from such degradation and trauma. The increasing prevalence of such offending in the community calls for deterrent sentences."

26. In a case with some similarities to this case Shameem J in The State v Navauniani Koroi (unreported) Cr. App. Case No. HAA0050.2002S arrived at a sentence of 12 years and explained:
    

"Taking the 7 years as the starting point, I increase the term by two years for the young age of the complainant, and a further three years for the fact that she is your daughter. I add a further year for the resulting pregnancy. I reduce the term by one year for the guilty plea and other mitigation..."

27. In The State v Peniasi Senikarawa (unreported) High Court Suva Cr. Case HAC0017.2002S; 20 May 2003 the Accused was sentenced to 11 years imprisonment. Shameem J started on the tariff at 7 years. The mitigation was that the Accused had a good character, was hardworking and struggling to raise his son single handed. But for being in breach of his position of trust to his 14 year old step-daughter, for the beatings he gave her, and for the fact that she had to give evidence twice, the court imposed a further 4 years.
    
28. In Inoke Buli v The State (unreported) Court of Appeal, Fiji Cr. App No. AAU0003.00S; 24 May 2001 the Court of Appeal approved a sentence of 12 years on an Accused for rape of his mentally retarded step-daughter. There was both breach of trust and the Accused had a prior conviction for rape as aggravating factors. The force however appeared to be minimal.
    
29. In State v Marawa ( 2004) FJHC 338; HAC0016T.2003S Justice A.H.C.T Gates (as then was):
    

"Since the victim was in a vulnerable category, the starting point in the tariff is 7 years. For each of the 6 significant aggravating factors that I have listed, I will add to the 7 years a further year each, making a total sentence on each of the 2 counts of 13 years. I have considered the question of totality, and the sentences on each count therefore will be served concurrently with each other."

30. You are an elderly person and the guardian of the victim you should be ashamed for doing these things to this victim child. You described the incident of having sexual intercourse is "just to satisfy yourself" but you traumatized the child and ruined the life of this young girl.
    
31. I refer the observation made by Justice Goundar in State v AV (2009) FJHC 24; HAC 192. 2008 (21 February 2009) His Lordship states as follows:
    

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

32. Considering all the available evidence before me I commence your sentence at 13 years imprisonment.
    
33. Considering the aggravating factors as I discussed above I increase your sentence by 6 years. Now your sentence is 19 years imprisonment.
    
34. Considering the mitigating circumstances stated above I reduce your sentence by 5 years. Now your sentence is 14 years imprisonment.
    
35. Now I will summarize your sentence as follows:
    
    1. Count No. 1 Indecent Assault - 03 years imprisonment.
       
    2. Count No. 2 Rape - 14 years imprisonment.
       
    3. Count No. 3 Indecent Assault - 03 years imprisonment.
       
    4. Count No. 4 Rape - 14 years imprisonment.
       
    5. Count No. 5 Rape - 14 years imprisonment.
       
36. Your total sentence is 48 years, but considering your mitigation submitted to Court and relevant laws, I order the above sentence to run concurrently. You are sentenced to 14 years imprisonment.
    
37. Considering Section 18 (1) of the Sentence and Penalties Decree I am imposing 11 years as non-parole period.
    
38. You have 30 days to appeal to the Court of Appeal.
    

S Thurairaja
Judge

At Suva

Solicitors
Office of the Director of Public Prosecution for State
Accused in Person