State v Cabebula - Sentence [2012] FJHC 1061; HAC172.2011 (3 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 172/ 2011

BETWEEN:

STATE

AND:

AISEA CABEBULA

COUNSELS: Ms. Luisa Latu for the State

Accused in person

Date of Hearing : 16th April, 2012

Date of Sentence : 03rd May, 2012.

SENTENCE

01. The Director of Public Prosecution had preferred the following charge against the accused above named.

Statement of Offence

INCEST BY RELATIVE: Contrary to Section 223(1) of the Crimes Decree No: 44 of 2009.

Particulars of Offence

AISEA CABEBULA between the 1st day of October 2010 and 30th of November 2010 at Tuvuca Island, Vanuabalavu in the Eastern Division had carnal knowledge of LANIETA SENIROSI a person he knew was his daughter.

02. When the Plea was taken up on the 29th day of April, 2012 the accused had pleaded guilty to the charge against him. Accepting the Plea to be unequivocal this court found him guilty and convicted him under Section 223(1) of Crimes Decree No: 44 of 2009.

03. State Counsel submitted following summary of facts of which the accused admitted.

The accused, Aisea Cabebula 42 years old at the time of offending, a farmer of Tuvuca Island of Vanuabalavu, Lau. The victim, Lanieta Senirosi, 18 years old, unemployed, also of Tuvuca Island, Vanuabalavu. The victim is the biological daughter of the accused person.

In the month of October 2010, the victim was alone at home with her two younger siblings and accused when her mother, Litiana Vakaloloma had gone to Lomaloma with her older sister, Ewa Salaiwai to give birth. On this particular day at about 5pm, date not known to the victim, the accused came to the victim in her bedroom with a coconut knife in his hand and told the victim to lie down otherwise he would kill her. The victim was sitting on her bed, she got scared and began to cry and lay on the bed and the accused undressed the victim and forcefully had sexual intercourse with her. After that encounter the accused continued to threaten the victim not to say anything or he would kill her. There was continuous sexual intercourse with the victim on her bed for the month of October 2010, by the accused with use of the knife to force the victim to have sexual intercourse and to threaten her not to tell anyone.

In the month of November 2010, when the victim's mother returned with the older daughter from Lomaloma, the accused repeatedly had sexual intercourse with the victim but this time it was at their outside kitchen, close range view. The accused always threatened to kill her if she tells anybody.

Between the months of October and November 2010, the accused knowing the victim as her daughter had carnal knowledge with her. This matter came to light when the complainant became pregnant and went to hospital for her booking where the information were revealed to staff nurse, Miriama Pareti, 27 years old, who was stationed at Tuvuca Nursing Station, that the accused was the father of the baby. This was on 25th of May, 2011.

The matter was then reported to Vanuabalavu Police Station on 27th of May, 2011. The victim was medically examined by Dr. Avikali Mate on 31st of May, 2011 and the finding are as follows:

• Clinically pregnant, age of the gestation 26 weeks
• Follow-up at Ante Natal clinic
  

The accused was caution interviewed in the Fijian language on the 2nd of June; 2011. The caution interview was translated to the English language thereafter. The accused knowing the victim is his second daughter admitted to have sexual intercourse with her on the bed for the month of October 2010 and in the month of November 2010 it was at the kitchen. The accused admitted that on those occasions he was in possession of his coconut knife, forcing the victim to have sexual intercourse with him and threatening her not to tell anyone.

The accused was formally charged in Fijian language on the 6th of June 2011. The charge was translated to the English language thereafter.

THE LAW AND THE TARIFF

04. As per section 223(1) of Crimes Decree, 2009 the maximum sentence for the offence of Incest by Relative is 20 years imprisonment. If the complainant is under the age of 13 years, the offender is liable to life imprisonment. This is the same imprisonment period under repealed old Penal Code. The tariff and the law in relation to this charge remains the same and is determined by case laws.

05. In Lalta Prasad v State Cr. App No: 059/2007, Madam Justice Shameem stated:
"The maximum sentence for incest by male was increased by Parliament in 2003, to 20 years imprisonment if the child was under the age of 13 years. In Sikeli Koro v The State [2002] HAA 0048.J the tariff for incest cases was said to depend on the age of the victim".

06. In State v Kumar [2010] FJHC 160; HAC 176.2008S (14th May 2010) Justice Temo J highlighting the above case state:

"Incest is also a serious offence. It carried a maximum sentence of 20 years imprisonment. The tariff for incest depended on the age of the victim. If the victim was aged 13 years, the tariff would be a sentence between 6-7 years imprisonment. If the victim was aged between 14-16 years old, the tariff would be a sentence between 4-6 years imprisonment. The actual sentence passed will depend on the presence or otherwise, of strong mitigating and/or aggravating factors".

07. In State v Ledua [2004] FJHC 118, Hac 0003.2004(28th June 2004) it was held that the starting point for incest of a victim over 16 years of age is 4 years imprisonment. It was further held that the starting point for incest of a victim between 13-16 years of age is between 7-10 years imprisonment. It was also held that the starting point for incest of a victim who has been subjected to long term sexual abuse from young age is between 10-15 years.

08. In State v Naidu [2004] FJHC 492; HAA 0080.2004L (29th October 2004), the state appealed against the leniency of sentence received by the accused. I was allowed. He was sentenced to 2 years imprisonment for 1 count of incest by male. After appeal, he was sentenced to 9 years imprisonment.

09. In Tamani v State [2005] FJCA 4:AAU0025.2003S (4th March, 2005), the accused appealed his conviction and sentence. It was dismissed. After a full trial, the accused was found guilty of 6 counts of incest by male. He had carnal knowledge of his 20 years old daughter and was sentenced to 11 years imprisonment.

10. The victim is the biological daughter of the accused. The accused knowing that the victim is her daughter, a child out of his own blood, forcefully had sexual intercourse with the victim after putting her fear of death. As a result victim became pregnant and delivered a child. The action of the accused clearly demonstrates a complete disregard of the defined social, religious and traditional rules that prohibit sexual relationship between family members.

11. The accused is 44 years of age, married with 05 siblings. When arrested he co-operated with the police and made confession in his Record of Interview. He is the sole bread winner of the family. He was in remand custody for 11 months. He pleaded guilty before commencement of the trial.

12. I have carefully considered these submissions in light of the provisions of the Sentencing and Penalties Decree No: 42 of 2009 especially those of the sections set out below in order to determine the appropriate sentence.

13. Section 15(3) of the Sentencing Decree provides that:

"as a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in Section 4, and sentence of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in the General Sentencing Provisions of the decree".

14. The objectives of sentencing, as found in section 4(1) of the Decree, are as follows:

1. To punish offenders to an extent and a manner, which is just in all the circumstances;
2. To protect the community from offenders;
3. To deter offenders or other persons from committing offences of the same or similar nature;
4. To establish conditions so that rehabilitation of offenders may be promoted or facilitated;
5. To signify that the court and the community denounce the commission of such offences; or
6. Any combination of these purposes.
   

15. Section 4(2) of the Decree further provides that in sentencing offenders, a Court must have regarded to:

(a) The maximum penalty prescribed for the offence;

(b) Current sentencing practice and the terms of any applicable and guideline Judgments;

(c) The nature and gravity of the particular offence;

(d) The defender's culpability and degree of responsibly for the offence;

(e) The impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) Whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

16. Now I consider the aggravating factors:
    
    1. The victim is the biological daughter of the accused.
    2. The accused forcefully had sexual intercourse with the victim and made her pregnant.
    3. The accused used weapons to commit the crime.
    4. The accused took the advantage of the trust that the victim had placed on him as a result of their father and daughter relationship.
    5. The accused disregarded the clearly defined social, religious and traditional rules that prohibit sexual relationship between family members.
    6. The victim is emotionally distressed and psychologically affected due to this incident.
       
17. Now I consider the mitigating circumstances:
    
    • (a) The accused pleaded guilty before the commencement of the trial.
    • (b) By pleading guilty he has saved the victim from having to re-live her ordeal all over again whilst giving evidence.

(c) Accused is 44 years old married with 5 siblings.

(d) He co-operated with the Police and made confession in his record of caution interview statement.

(e) He is the sole breadwinner of the family.

(f) He is remorseful.

(g) Period in remand.

(h) Accused has no previous conviction.

18. Considering all aggravated and mitigating circumstances I take 04 years imprisonment as the starting point. I add three years for aggravating factors to reach the period of imprisonment at 07 years. I deduct 03 years for the mitigating factors.

19. In summary you are sentenced to 04 years imprisonment.

20. Acting in terms of section 18(1) of the Sentencing and Penalties Decree, I further order that you are not eligible for parole within a period of 03 years.

21. 30 days to Appeal.

P.Kumararatnam

JUDGE

At Suva

03rd May 2012