State v Kuruyawa [2011] FJHC 347; HAC008.2011 (15 June 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 008 OF 2011S

STATE

vs

TANIELA KURUYAWA

Counsels : Ms. S. Hamza for the State
Accused in Person
Hearings : 21st January and 8th February, 2011
Sentence : 15th June, 2011

SENTENCE

1. On 21st January, 2011, you appeared in court on the following charge:

Statement of Offence

RAPE: contrary to Section 207(1)(2)(b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

TANIELA KANAVEILOMANI KURUYAWA, on the 12th day of December 2010 at Muanikoso Village, Kadavu penetrated the vagina of ANA RADINIVULAGI with his finger, without her consent.

2. Your right to counsel was put to you. You waived your right to counsel. You said, you would represent yourself. The charge was read and explained to you. You said, you understood the same. You then pleaded guilty to the charge. The case was adjourned to 8th February, 2011, for the facts to be prepared.

3. On 8th February, 2011, the prosecutor read her summary of facts in court. Briefly, they were as follows. The female complainant was 5 years old. You were 34 years old – an age difference of 29 years. You both reside in a village in Kadavu. It was 12th December, 2010, at about 4pm, the female complainant went to a neighbour's house. You were there with the complainant's elder brother. You were their uncle. You later asked the female complainant and his brother to accompany you to Joeli's bure to have tea and biscuit. You took the lead and the two children followed.

4. When they arrived at Joeli's bure, you were pretending to sleep in one of the bedrooms, covered with a blanket. You then asked the complainant's brother to put her with you, under the blanket. He did that. You then took the complainant's hand and put it on your stomach. Then you took her hand and put it on your erect penis. Then you touched her private part. Then you penetrated her vagina with your finger. The victim yelled in pain, when you did the above.

5. Later, the female complainant told her mother. The matter was reported to police. She was taken for medical examination. Her medical report, dated 15th December, 2010, reported "a gaping vagina, hymen no longer intact, nil bleeding and nil laceration". You were later caution interviewed by police. You admitted the offence. You were later charged for rape.

6. At the end of the prosecution presenting her summary of facts, the court checked with you to see that you have admitted all the elements of rape. You admitted that, on 12th December 2010, at a village in Kadavu, you penetrated the female complainant's vagina, by putting your finger in the same. You knew at the time that the 5 year old complainant was incapable of consenting to such a thing, but you nevertheless went ahead, and put your finger in her vagina. As a result of your admission, the court found you guilty as charged and convicted you accordingly.

7. I note that, at the age of 34 years old, this is your first offence. I note you are single and a subsistence farmer. You plant yagona, cassava and dalo. I understand you reached Form 2 level education in 1992. I have carefully read all the papers submitted in this case.

8. Rape is a serious offence. The maximum sentence is life imprisonment. For adults, the tariff is a sentence between 7 to 15 years imprisonment: see Mohammed Kasim v The State, Criminal Appeal No. 21 of 1993, Fiji Court of Appeal; Bera Yalimaiwai v The State, Criminal Appeal No. AAU 0033 of 2003, Fiji Court of Appeal; Navuniani Koroi v The State, Criminal Appeal No. AAU 0037 of 2002, Fiji Court of Appeal and Viliame Tamani v The State, Criminal Appeal No. AAU 0025 of 2003, Fiji Court of Appeal.

9. Since the complainant in this case was a juvenile, that is, age 5 years old, the tariff for the rape of children is a sentence between 10 to 15 years: see Mark Mutch v The State, Criminal Appeal No. AAU 0060 of 1999, Fiji Court of Appeal; State v Lepani Saitava, Criminal Case No. HAC 10 of 2007, High Court, Suva; The State v AV, Criminal Case No. HAC 192 of 2008, High Court, Suva; State v VV, Criminal Case No. HAC 084 of 2009, High Court, Suva and State v Waqabaca, Criminal Case No. HAC 139 of 2008, High Court, Suva. The actual sentence will depend on the mitigating and aggravating factors.

10. The mitigating factors in your case were as follows. First, you pleaded guilty in this case, and therefore saved the court's time. You also avoided the need to bring the young female complainant to court to re-live her ordeal, by giving evidence. Second, this was your first offence, at the age of 34 years. Third, you are a person of limited education. Fourth, you have been remanded in custody since 3rd January, 2011 – a period of approximately 5 months.

11. The aggravating factors in your case were as follows. First, the rape of a child is always a serious matter. In this case, you raped a child by inserting your finger into her vagina. Previously, this act amounted to an indecent assault, but under the Crimes Decree 2009, it is now classified as rape. Second, you stand as an uncle to the female complainant. As a result, you abused the complainant's trust in you, as an uncle. You lured her to Joeli's bure, you exploited her naivety to come to your bed, then you did the unthinkable by putting her hand on your erect penis and penetrating her vagina with your finger.

12. I start with a sentence of 10 years imprisonment. For the mitigating factors, I decrease the 10 years by 4 years, leaving a balance of 6 years imprisonment. For the aggravating factors, I increase the 6 years by 5 years to 11 years imprisonment. I sentence you to 11 years imprisonment. Pursuant to section 18(1) of the Sentencing and Penalties Decree 2009, you are to serve a non-parole period of 8 years imprisonment. I order so accordingly.

Salesi Temo
JUDGE

Solicitors for the State : Office of Director of Public Prosecution, Suva.
Solicitors for the Accused : In Person.