Roligalevu v State [2012] FJHC 1092; HAC052.2011 (18 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 052 of 2011

BETWEEN:

PENIAME ROLIGALEVU

AND:

THE STATE

Hearing: 14 – 17 May 2012
Sentence: 18 May 2012

Counsel: Ms A. Vavadakua for State
Ms M. Savou for Accused

SENTENCE

[1] Peniame Roligalevu, you stand convicted of rape and defilement of a 14-year old victim at Narocake village in Rewa.

[2] On the night of 3rd September 2010, the victim was grabbed and pulled behind a house when she was returning to her bedroom after visiting the washroom outside her home. You threw her on the ground and undressed her. You gagged her mouth with your hand to prevent her from screaming. You jabbed her down with your hand and thighs and raped her.

[3] Two months later, on the night of 25th November 2010, you entered the victim's bedroom and had sexual intercourse with her. This time she did not resist. You knew she was under the age of 16 years when you had sex with her.

[4] You were an authority figure over the victim by relationship and age. She was your younger brother's stepdaughter who had come to live with her mother when she married your brother. Apart from her mother, she did not have any other relatives in Narocake village. The victim and her mother are originally from Macuata, Vanua Levu. When the incidents happened, the victim did not complain to anyone. But village gossips and rumors led her mother to confront her in December 2010. By that time, the victim had moved out of the village. The victim admitted the sexual assaults to her mother. Her mother immediately reported the matter to the police.

[5] The events that transpired afterwards are unfortunate. There was an existing conflict between you and the complainant's stepfather over your family home. The complainant's stepfather and her mother occupied the family home when the offences were committed. The allegations of sexual assaults against you by the stepdaughter of your brother further divided the family members. Your father held the traditional title of "matanivanua" in the village. He was the village spokesperson. By tradition, the title of "matanivanua" is considered important in the village context and is passed on to the brothers or sons. The allegations of sexual assaults against you must have been embarrassing for your family.

[6] I have no doubt in my mind that the traditional status of your father, gave you the authority and influence in the village. By age, you were older than the complainant's stepfather. The court was told that eventually the complainant's mother and stepfather moved out of the family home and built their own home on a neighbouring land. For the victim's mother, her loyalty was divided between her husband's family and her daughter. She ended up presenting a "bulubulu" (presentation of yaqona) as a form of traditional apology to all members of your household including your father, for reporting the sexual assaults to the police. The victim attended the "bulubulu" ceremony but her participation was not voluntary. As would have been expected of any 14-year old daughter, she felt obliged to participate and she did attend the ceremony, to please her mother.

[7] After the traditional apology, the victim's mother made her sign a statutory declaration withdrawing her complaint of sexual assaults against you. At trial, the victim's mother gave evidence for you. Your father and your sister-in-law also supported you. The Court accepted the victim's version of facts that she signed the declaration without knowing its contents.

[8] The young victim stood alone to give evidence. She was extensively cross-examined and accused of fabricating the sexual assaults against you. But she stood her ground and said she was raped and defiled by you. It must have taken a lot of courage for her to stand her ground knowing the consequences of telling the truth might come at a cost for her and her mother.

[9] In our country, we take pride in our customs and traditions. Customs and traditions should never be used to restrict access to justice. If anything, customs and traditions should be a medium to correct the harm done to the victim by making the offender accountable. Without accountability, relationships cannot be restored, no matter how much traditional apology is offered. This is an exceptional case where customs and traditions were exploited to suppress the truth.

[10] Under the domestic and international law, the State has positive obligation to bring the perpetrators of sexual assaults against children to justice. Children are vulnerable members of our society. They must be protected from sexual abuse. For this reason, the Court cannot condone any form of sexual abuse against children.

[11] The offences you committed are serious. Rape attracts maximum sentence of life imprisonment. Defilement is punishable by 10 years imprisonment.
[12] The victim was a child. The Courts in Fiji have repeatedly said that sexual assaults against children will be met by severe punishment to denounce and deter such offences.

[13] In Drotini v State [2006] FJCA 26; AAU0001.2005S (24 March 2006), the Court of Appeal provided sentencing guidelines for rape of a child by a family member. The Court said at p3:

"There are few more serious aggravating circumstances than where the rape is committed on a juvenile girl by a family member or someone who is in a position of special trust. The seriousness of the offence is exaggerated by the fact that family loyalties and emotions all too often enable the offender or other family members to prevent a complaint going outside the family. If the child then remains in the family home, the rapist often has the oportunity to repeat the offence and to hope for the same protection from the rest of the family.

Cases of rape by fathers or stepfathers appear before the courts in Fiji far too frequently and, in such cases, the starting point should be increased to ten years. Where there are further aggravating circumstances beyond those basic circumstances, such as repeated sexual molestation of any nature, threats of violence or actual violence or evidence that the offender has attempted to persuade other family members to help cover up the offences or discourage complaint to the police, there should be substantial increases above that starting point."

[14] Sentencing for defilement is approached by determining whether there was a "virtuous relationship" between the offender and the victim, the age gap between the offender and the victim and any breach of trust (Rokowaqa CA 37/2004, Kabaura HAC 117/2010, Donumainasuva CA 32/2001 and Raibevu HAC 27/2011).

[15] Your relationship with the victim was of trust. That trust was violated when you sexually abused her on two occasions. The subsequent attempt to deflect your prosecution by using customs and traditions further aggravated your offending. Rather than you being remorse for your conduct, you further victimized her by making her offer a traditional apology to you. She was the victim, not you. If there should have been any apology, it should have come from you.

[16] Your pastor gave evidence of your character. You are a Christian by faith. You have previous convictions but they are irrelevant for the purpose of sentencing in this case. I take into account your personal circumstances and your good character as mitigating factors. You are married with 7 children. You are 36 years old. You support your family by farming and fishing. Any prison sentence will cause financial hardship to your wife and children. But I am not satisfied that the hardship will be exceptional as to operate as a mitigating factor.

[17] For the offence of rape, I use 10 years as my starting point. I increase the sentence to 15 years to reflect the aggravating factors and reduce it to 12 years to reflect the mitigating factors. I sentence you to 12 years imprisonment for rape and I fix a non-parole period for 10 years.

[18] For the offence of defilement, I use 5 years as my starting point. After adjusting for the mitigating and aggravating factors, I sentence you to 4 years imprisonment for defilement, to be served concurrently with the sentence for rape.

[19] Your total sentence is 12 years imprisonment.

Daniel Goundar
JUDGE

18 May 2012
Solicitors:
Office of the Director of Public Prosecutions for State
Office of the Director of Legal Aid Commission for Accused