State v M.D. [2010] FJHC 579; HAC129.2010L (12 October 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 129 OF 2010L

STATE

vs

M. D.

Mr. J. Singh for the State
Accused in Person

Date of Hearing: 24 September & 7 October 2010
Date of Sentence: 12 October 2010

SENTENCE

[1] On the 16th September 2010 this accused entered a plea of guilty in the Ba Magistrates Court to one offence of rape contrary to sections 149 and 150 of the Penal Code, Cap. 17. The particulars state that on the 23rd May 2009 at Koronubu, Ba he had unlawful carnal knowledge of (a girl) without her consent.

[2] This plea was entered after a voir dire ruling that his cautioned interview be admitted into evidence, however most oddly, the accused had entered a plea of guilty on his very first appearance on 17th June 2009, a fact that appeared to have been overlooked by both the Magistrate and the prosecution at later appearances.

[3] The facts of the case which the accused admitted in the Court below reveals that on the 23rd May 2009 at about 5.00pm, the accused who is the victim's step father called her to work in the cassava patch 150 metres from their home. In the course of the work the accused took the victim farther away from the house to a dry creek bed. Beside that creek he removed her and his own clothes and proceeded to lick her breasts, stomach and vagina. He then penetrated her and ejaculated. As a result she was infected with a sexually transmitted disease and her genitals were injured. The accused confessed to Police in an interview under caution.

[4] The victim was 13 years old at the time and a school student in Class 7. She lived in the same house with the accused, her step father. The victim had been left in the care of the accused when her mother had gone to town to shop.

[5] The accused is 40 years of age, and works as a farmer. He appeared most remorseful and asks the Court for forgiveness. He says that he succumbed to temptation. He produced in Court a letter of reference from the head of the Tavua circuit of the Methodist Church, which letter sets out his family circumstances, including the poverty faced by the family if he is removed from them, and it also states that he has commenced training as a junior lay preacher, "having devoted his life to the Lord Jesus Christ."

[6] The State has filed concise but relevant submissions on sentence.

[7] Rape of children in Fiji is becoming far too prevalent. It is profoundly sad that girls of school age at an extremely vulnerable stage in their development should have to suffer the crushing indignity of this offence. As Goundar J. said in State v AV HAC 192 of 2008:

"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 offence."

Psychologists tell us that the emotional damage occasioned to child victims in sexual offences is immeasurable.

[8] The maximum penalty for rape is life imprisonment, with the tariff for rape of a child being between ten and fifteen years. If rape of a child is not serious enough, the fact that she was your step daughter adds much to the severity of the offence. As a stepfather you have a role as her protector, role model and mentor. Instead you shattered that role in a small period of which you call "temptation". Your relationship will never be the same again, nor could you expect it to be, nor should you deserve to be restored to a parental role in the future.

[9] For this heinous crime, I take a starting point in sentence of fifteen years. For the highly aggravating circumstances in which you infected her with a sexually transmitted disease and caused injury to her vagina, I add to that term a further 3 years. You have powerful mitigation in your favour. You pleaded guilty at the first opportunity, and you are obviously remorseful. You have spent less than 2 months in custody pending sentence. For these mitigatory factors I reduce your sentence to one of 12 years and that is the sentence of the Court. You will spend 10 years in custody before you are eligible for parole.

[10] It is to be noted that the names of the accused and that of the victim have been suppressed, in order that the victim may in anonymity be allowed to recover psychologically.

[11] You have 30 days to appeal to the Fiji Court of Appeal.

Paul K. Madigan
Judge

At Lautoka
12 October 2010