State v Talenasila [2010] FJHC 84; HAC011.2010 (12 March 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 11 OF 2010

STATE

V

SIMIONE TALENASILA

Ms M. Fong for the State
Accused in Person

Date of Hearing: 10 March 2010
Date of Sentence: 12 March 2010

SENTENCE

[1] After trial in the Magistrates Court at Lautoka on one count of rape and two counts of indecent assault, the accused was found guilty and convicted on the 19th February 2010.

[2] On the 10th March 2010 the learned Magistrate, on application by the State, transferred the matter to this Court for sentencing pursuant to section 190(c) of the Criminal Procedure Decree 2010.

[3]

i. The facts reveal that on an unknown day in 2008, the accused took the victim, his own daughter, on horseback to the village of Abaca. Whilst there, he ordered her to remove her clothes and lie on the ground. He removed his own clothes and raped her. She was aged 14 at the time.

ii. On the 20th January 2009 at about 9.00pm, the same victim was sleeping in a room with her two younger brothers and the accused. Her father woke her and called her to the floor, pushing the boys away, pulled off her panties, rubbed his penis against her vagina and licked her indecently there.

iii. On the 24th January 2009 the accused again on the floor of the bedroom made the same victim lie close to him. He removed her clothes, rubbed both his tongue and penis over her vagina until he ejaculated.

[4] The accused said nothing in mitigation, but submitted a written "application for bail pending trial". This was totally misconceived in that there was to be no trial in this Court, and bail was totally out of the question. However in that application he did refer to several mitigating factors. He submits that he is the sole breadwinner for his impoverished family, that he has elderly parents and a father who is handicapped. He also submitted a letter of reference from the prison which claims that he is a member of the Western Ward Rugby Team. He is a role model in the team and a source of inspiration to younger unemployed men. He is 44 years old and unemployed.

[5] Rape and indecent assaults by a father on a 14 year old daughter does not make him a role model in my Court. The crimes are abominable and are becoming far too common in Fiji. The authorities state that rape of children must incur a starting point of ten years.

[6] In the case of State v Marawa [2004] FJHC 338, Gates J. (as he then was) passed a sentence of 13 years on a 51 year old for raping a 14 year old in his care. His Lordship said "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 sentences". I agree.

[7] In Poese v State, an appeal against sentence for rape. Shameem J. was reviewing a Magistrate’s sentence for a man convicted of raping his own 12 year old daughter found that a 15 year sentence for rape to be justified in the circumstances.

[8] 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] I take a starting point for the rape a term of imprisonment for 12 years. There is no meaningful mitigation and in any event he has four previous convictions for rape in the year 2000. Those convictions afford him no credit. The fact that it was his own daughter and that he used his status as her father to override her will I take as a serious aggravating feature for which I will add two years to the sentence. For the rape he is therefore sentenced to 14 years imprisonment.

[10] The maximum penalty for indecent assault is 5 years imprisonment and in the case of State v Kumar [2003] FJHC 71 Shameem J. said that indecent assaults on children should attract sentences of 3 years imprisonment. That is the starting point I take in this case for each of the two indecent assaults.

[11] The victim at 14 years of age is still a child and at the mercy of her aggressive father. To have committed these offences in front of her two young brothers is a further aggravating feature. For that I increase his sentence by one year making a total sentence for each indecent assault a term of 4 years.

[12] The sentences for the two indecent assaults are to be served concurrently, but pursuant to section 17 of the Sentencing and Penalties Decree 2009, I order that two years of those sentences be served consecutively to the rape sentence. The total period of imprisonment therefore will be a term of 16 years imprisonment.

Paul K. Madigan
Judge

At Lautoka
12 March 2010