State v Elder [2011] FJHC 399; HAC016.2011 (15 July 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No: HAC016 of 2011

THE STATE

v.

FRANK JOSEPH ELDER

Counsel: Mr. M. Kaisamy for State
Ms. M. Lemaki for Accused

Date of Hearing: 13-14 July 2011
Date of Sentence: 15 July 2011

SENTENCE

[1] Following a trial, the accused was convicted of rape of his juvenile step-daughter. The incident occurred at Namara, Labasa. The accused was charged on 28 February 2011. He was kept in custody on remand until 11 April 2011 when the High Court granted him bail.

[2] The victim is 17 years old and is a student. Even at the age of 17, she is of a small stature when compared with the accused. She moved in to live with the accused when her mother married him in 2007. The rape occurred on the night of 14 February 2011 when the victim was returning home from a shop with her younger step-sister and the accused. The accused directed the two girls to take a short-cut to their home that went through the rubbish dump in Namara. When they arrived at the rubbish dump, the accused separated the two girls and directed the victim further into the bushes. He then raped the victim. The victim told this court that it was a painful experience for her and that she was crying during the incident although she was not physically injured. She did not complain to anyone about the incident because she feared that the accused would assault her.

[3] The maximum penalty for rape is life imprisonment. In Drotini v The State Criminal Appeal No. AAU0001.2005S, the Court of Appeal established the starting point of 10 years imprisonment for the rape of a child by a family member.

[4] The accused is 54 years old. He married the victim's mother in 2007 after the death of his first wife. He had 3 children from his first marriage and has 1 child from his current wife. He also adopted his current wife's 3 children including the victim from her first marriage. His wife and children are financially depended on him. He works as a labourer and lives in the squatter with his family.

[5] I accept that the accused is the sole breadwinner for his family and that the sentence will impact their lives. It is rather unfortunate that the sentence will have an impact on the accused's family but it is only when the impact is exceptional that the court will consider it as a mitigating factor. I consider the impact to be exceptional in this case because the accused's children are schooling and his wife is unemployed. Without any source of income there is a real risk that they will be deprived of their basic needs.

[6] The accused has 1 previous conviction for assault occasioning actual bodily harm in 2006. I consider his, otherwise blameless life as a mitigating factor.

[7] The impact of the offence on the victim was apparent when she was giving evidence. Her trust was breached when the accused raped her. She sobbed when she relayed the incident in court. It was a painful experience when she was raped and now when she had to give evidence in court. She came alone to court. Even her mother did not support her. Her mother apparently gave evidence in favour of the accused as if nothing had happened to her daughter. I can understand her loyalties lie with her husband as she does not want to slash the hands that feed her and her children. This made the victim more vulnerable. Even if she had complained to her mother, her voice would have been unheard. These factors aggravated the offence.

[8] After the incident, the victim has moved in to live with a relative from her biological father's side. Fortunately, she is continuing with her education.

[9] The sentence should reflect the society's disapproval of the offence that the accused has committed. This type of offence is becoming too prevalent in our community. The courts in Fiji have stated so many times that children are vulnerable members of our society. Our future lies with our children. Any form of sexual assault on our children will result in condign punishment imposed on the offenders.

[10] I pick 10 years as my starting point. I increase the sentence to 15 years to reflect the aggravating factors and reduce the sentence to 12 years to reflect the mitigating factors and the remand period.

[11] The accused is sentenced to 12 years imprisonment with a non-parole period of 10 years. The purpose of the sentence in this case is to deter the accused and others from committing this type of offence in future.

Daniel Goundar
JUDGE

At Labasa
15 July, 2011

Solicitors:
Office of the Director of Public Prosecutions, Labasa for the State
Office of the Legal Aid Commission, Labasa for the Accused