State v Anthony [2012] FJHC 1013; HAC151.2010 (12 April 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO : HAC 151 of 2010

BETWEEN

STATE-
Prosecution

AND

ANTHONY-
The Accused

Dates of Trial : 28-29 March and 04 April 2012
Date of Summing-Up and Judgment : 05 April 2012
Submsns. in Mitigation : 12 April 2012

Ms Pulekeria Low for the State
Mr Iqbal Khan with Ms Q Vokanavanua for the Accused

(Name of the victim is suppressed. She will be referred to as MB)

SENTENCE

1. The accused stood charged for having committed the offence of rape on one MB on 26 November 2010. After trial, the assessors returned unanimous opinions of 'guilty'. I, having considered the evidence and my summing-up on the law, concurred with opinions of the assessors and convicted the accused of the offence as charged under Section 207 (2) (1) (b) of the Crimes Decree No 44 of 2009.
   
2. The charge was sequel to an act of inserting a finger into the vagina of MB by the accused on 26 November 2010 at Raviravi, Ba.
   
3. The accused was 66 years of age, while the victim was only 05 1/2 years.
   
4. Evidence revealed that the victim-MB was with her mother, Leba Latileta, and aunt, Mereani Tamoi, in the afternoon on 26 November 2010. The accused, who was living about 50M away from the dwelling of the witnesses in the same neighborhood, was well-known. They had been on visiting terms to each other for several months until 26 November 2010, on which date the incident took place.
   
5. The accused came with lamb neck around 4.00 p.m. and requested Leba Latileta to cook a curry. As she did not have chilies at home, the accused had offered to give her the chilies and took MB to send chilies for Leba Latileta.
   
6. Later, as witness-Leba Latileta walked up to the accused's shop to bring potatoes, she found the slippers of her daughter, MB, outside the house of the accused while all doors of the house remained closed. A curiosity-stricken witness then knocked on the doors, as a result of which, the accused opened-up the front door.
   
7. MB, immediately upon seeing the mother, told that the accused poked into her vagina.
   
8. MB was subjected to medical examination by the Pediatric Registrar of Lautoka Hospital where redness on the left labia majora and two tears on the hymen were observed. The doctor, upon examination of the victim, came to the conclusion that her findings were consistent with the history of penetration of the vagina with a finger, as narrated by victim.
   
9. It is in light of the above evidence that the accused stands convicted for rape under Section 207 (1) (2) (b) of the Crimes Decree No 44 of 2009, which expanded the traditional scope of the offence to include inter alia the like instances of penetrating a vagina with any object without the consent of a woman. In this case, as provided for under Section 207 (3) of the Decree, the issue of consent became immaterial as the victim-MB was only 5 1/2 years of age and was incapable of giving consent under the law.
   
10. The offence of rape is very serious in that it is triable only by the High Court, which attracts the punishment of life imprisonment under Section 207 (1) of the Decree irrespective of the manner of offending and the status of the victim.
    
11. The range of sentence for rape of children has been set between 10-15 years by sentencing guidelines. In State v Mario Tauvoli; [2011] FJHC 216; HAC 027/2011, a starting point of 12 years was taken to punish a rape convict where the victim was a fourteen year old step-daughter and a term of 13 years was imposed with a non-parole period of 10 years.
    
12. In State v Anand Abhay Raj (HAC 09/2010), a similar range of sentence was applied to deal with an offender who had raped a ten year old step-daughter, having picked-up 12 years as the starting point to reach a mandatory 12 year period of sentence.
    
13. Learned counsel submitted to court aggravating and mitigating circumstances in order to assist court in regard to the imposition of an appropriate sentence on the accused. I have considered their submissions carefully in light of the provisions of the Sentencing and Penalties Decree in determining the sentence.
    
14. The victim in this case was only 5 1/2 years of age at the time of the incident. She was just stepping into her formative ages.
    
15. The accused, who was 66 years old, had two grown-up sons and a daughter and two grandchildren.
    
16. The accused, in the circumstances, either knew or ought to have known the value of children; and, that they needed protection and shelter from adults. Despite that, the accused raped and deflowered MB, who perhaps would have been in the same range of age as his grandchildren were, to satisfy his unnatural lust occasioning a serious breach of trust and morality.
    
17. The conduct of the accused was a calculated one as he took MB into a closed house and committed the crime on MB having kept her incommunicado.
    
18. The accused's engagement in his unilateral sexual activity with a little girl who was insensitive to such activity is most abhorrent. This kind of immoral act on a little girl of MB's standing is bound to yield adverse results and psychological trauma, the effect of which is indeed difficult to foresee and assess even by psychologists or sociologists. The depravity of the accused in committing the offence should be denounced to save little children for their own future; and, the men of the accused's calibre should not be allowed to deny the children of their legitimate place in the community. In passing down the sentence in a case of this nature, deterrence is, therefore, of paramount importance.
    
19. I am, in the circumstances, inclined to pick up a starting point of 14 years for the sentence in this case to reflect that the victim is very small compared to those in the two cases referred to above. I add two years for the factors in paragraphs 14-18 above, which I consider as seriously aggravating circumstances to enhance the sentence to reach 16 years.
    
20. I do not see favourable circumstances to mitigate the sentence other than the previous record free from blemishes. Although, the offence for which he is convicted now is so serious that his previous good behaviour is outweighed, I nevertheless decide to reduce his sentence by two years as he is a first offender. In the result, I arrive at a term of 14 year-imprisonment.
    
21. The accused has not shown any remorse or repentance. On the contrary, he relentlessly castigated the witnesses saying that they were making up a false allegation at the expense of the little girl to avenge an unsubstantiated previous incident of refusing a loan to MB's mother. This added, in my view, insult to the injury. While court recognizes that the accused was entitled to advance any proposition in support of his case, court equally recognizes that it should show its displeasure by showing no mercy in the matter of sentence when such allegations are found to be totally ill-founded as in this case.
    
22. Accordingly, I will determine that a 14 year period of imprisonment on the accused is appropriate to meet the principles and objectives of the Sentencing and Penalties Decree. The final sentence, therefore, is 14 years of imprisonment.
    
23. Acting under Section 18 (1) of the Sentencing and Penalties Decree, I order that the accused shall not be eligible for parole until he serves twelve [12] years in imprisonment.
    

Priyantha Nāwāna
Judge
High Court
Lautoka
16 April 2012