State v S E [2011] FJHC 737; HAC266.2011 (3 November 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 266 OF 2011

BETWEEN:

THE STATE

AND:

S.E.

Counsel: Ms. S. Hamza & Ms. L. Koto for the State
Accused In Person

Date of Summing Up: 28th October 2011

Date of Sentence: 03rd November 2011

SENTENCE

1. Name and identity of the victim and others were suppressed due to the suppression order issued by me on the request of Counsel.
   
2. The Accused S.E. was charged with 1 Count of Sexual Assault punishable under section 210 (1) (a) (2), one Count of Rape punishable under section 207 (1) (2) (c) and one Count of Sexual Assault punishable under section 210 (1) (b) (ii) of the Crimes Decree.
   
3. Trial commenced on the 24th and concluded on 28th instant. All three assessors unanimously found the Accused guilty on all three charges. Being convince with the evidence this court convicted the Accused on all three Counts.
   
4. For the purpose of sentencing facts of the case is briefly discussed as below. The Accused is the uncle of the virtual complainant's father. The child called the Accused as 'Kuku' meaning grandfather. The virtual complainant is 4 years old girl. The Accused is a married person with two children aged 9 and 6 years. On the 6th August 2011 the Accused had visited the home of the victim. There he had licked the genetalia and the anus of the child. Thereafter he had forced open the mouth of the victim and inserted his penis. On the 3rd incident when the Accused had masturbated in front of the child. The last incident was witnessed by the mother of the child.
   
5. Now I consider the 1st charge against the Accused, Sexual Assault punishable under section 210 (1) (a) of the Crimes Decree. The maximum sentence punishable by law is 14 years imprisonment.
   
6. The second charge is Rape punishable under section 207 (1) which prescribes maximum punishment as imprisonment for life.
   
7. The third charge is Sexual Assault punishable under section 210 (1). The maximum sentence prescribed by law is 10 years imprisonment.
   
8. Tariff for the offence of Sexual Assault was discussed in many decided authorities. 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."

9. In Sikeli Nayata v State Criminal Appeal No. HAA 46 of 2008 Justice Madam Shameem held 4 years as reasonable sentence.
   
10. Considering the nature of the offence especially the age of the victim child and the relationship, I commence your sentence at 3 years imprisonment for the 1st charge of Sexual assault.
    
11. Considering the 3rd charge namely the Sexual Assault. Being an adult you have committed a very indecent. This in front of a 4 year old female child. I commence your section at 3 years imprisonment.
    
12. Tariff for the offence of Rape was discussed in many cases.
    
13. In State v Marawa (2004) FJHC 338 Justice Gates (as then he was) 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 miting out harsh sentence. In this His Lordship imposed 13 years imprisonment.
    
14. 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."

15. 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."

16. 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."

17. 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."

18. 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..."

19. 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.
    
20. 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.
    
21. Our society respects the relationship and keeps trust and faith as elderly people. If that trust is breached, relationship bond will not exist then there won't be relations and friends. Being a human being if you can't honour the trust then there is no difference between human and animals.
    
22. Considering all available materials before me I commence your sentence at 12 years imprisonment.
    
23. Considering the aggravating factors.
    
    • (i) Victim child is 4 years old girl.
      
    • (ii) Your relationship.
      
    • (iii) Breach of grandfather – grandfather relationship.
      

Considering all aggravating factors I increase 3 years. Now your sentence is 15 years imprisonment.

24. Considering the mitigating circumstances.
    
    • (i) You are first offender.
      
    • (ii) Your period in remand.
      
    • (iii) You have two small children aged 9 & 6 years
      
    • (iv) You claim you have to look after your 59 years old mother.
      
    • (v) You are the sole breadwinner of the family.
      
    • (vi) You claim you are remorseful.
      
    • (vii) You seek second chance in your life.
      

Considering all I reduce 6 years from your sentence. Now your sentence is 9 years imprisonment.

25. Your sentence are as follows:
    
    1. First charge – Sexual Assault – 3 years imprisonment.
       
    2. Second charge – Rape – 9 years imprisonment.
       
    3. Third charge – Sexual Assault – 3 years imprisonment.
       
26. Considering section 18 (1) of the Sentencing & Penalties Decree I impose 7 years as non parole period.
    
27. Considering the entire case I order all three sentence to run concurrently. You are sentenced to 9 years imprisonment with 7 years non parole period.
    
28. 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