State v AV [2012] FJHC 1151; HAC87.2011 (7 June 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 87 OF 2011

BETWEEN:

STATE

AND:

AV

Counsel : Ms. K. Semisi for the State
Mr. H. A. Shah & Mr. M. Degei for the Accused

Date of Trial : 21st May – 5th June 2012
Date of Ruling on
No Case to Answer : 24th May 2012
Date of Summing Up : 28th May 2012
Date of Judgment : 29th May 2012
Date of Sentence
Hearing : 5th June 2012
Date of Sentence : 8th June 2012

SENTENCE

1. To prevent the identity of the victim child the State has obtained suppression order of name and identity. Accordingly the name and the identity of the victim and the accused are suppressed.
   
2. The Accused above mentioned is the Biological father of the victim. She was born on 28th February 1997.
   
3. The Director of Public Prosecutions had originally preferred Two Counts of indecent assault and 3 Counts of Rape. After the trial the Accused was found guilty to 3 Counts of indecent assault and 2 Counts of Rape.
   
4. The child victim gave evidence in Court and told:
   
   1. That in 2006 when she was in Class 2 her father the Accused had indecently assaulted her;
      
   2. That in 2007 when she was in Class 3 her father the Accused had indecently assaulted her;
      
   100. That in 2008 when she was in Class 3 her father the Accused had raped her;
        
   4. That in 2009 when she was in Class 4 her father the Accused had raped her;
      
   5. That in 2010 when she was in Class 5 her father the Accused had indecently assaulted her.
      
5. Section 154 (1) of the Penal Code prescribes maximum punishment up to 5 years imprisonment for the offence of indecent assault.
   
6. Section 150 of the Penal Code prescribes imprisonment for life as maximum punishment for the offence of Rape.
   
7. Section 207 (1) of the Crimes Decree prescribes imprisonment for life as maximum punishment for the offence of Rape.
   
8. Section 212 (1) of the Crimes Decree provides 5 years as maximum punishment for the offence of indecent assault.
   
9. Tariff for the offence of indecent assault is between 12 months to 4 years imprisonment.
   
10. In William Christopher Millbery & 2 Others v R (2002) (ENCA Cnrm 2891 (09 December 2002) the Court held paragraph 22 at paragraph 7 of (2011) FJHC 36 State v SBN.
    
11. 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.
    
12. 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."

13. Tariff for the offence of Rape is discussed in many cases. Considering the recent development in Fiji the tariff is between 10 years to 16 years imprisonment.
    
14. The Accused had ruined the life of his daughter. She is presently kept at a girls home. Considering all I commence the sentence as follows:
    
    1. For indecent assault 2 years imprisonment;
       
    2. For Rape 15 years imprisonment.
       
15. Considering totality principle of sentencing I make orders to implement your sentence concurrently.
    
16. Considering the aggravating factors:
    
    1. The victim was your Biological eldest daughter;
       
    2. You betrayed the bond of father and daughter;
       
    100. You have seriously breached the trust of a father;
         
    4. You had sexual intercourse on many occasions;
       
    5. You have made her your sex slave;
       
    6. When you commenced your assault on your daughter she was just 7 years old;
       
    7. You destroyed the personality of your daughter;
       
    8. You made her to feel hopeless.
       

Considering all above aggravating factors I increase your sentence by 8 years. Now your sentence is 23 years.

17. Considering the mitigating circumstances:
    
    1. Your Counsel submitted you have 5 more children apart from this victim;
       
    2. You claim you are a first offender;
       
    100. You claim you have spent a total period of 9 months in remand;
         
    4. Your wife submitted a letter and claims that you should be given a second chance in your life;
       
    5. Your wife claims that they need your support.
       

Considering all above mitigating circumstances I reduce 5 years from your sentence. Now your sentence is 18 years imprisonment.

18. Considering the demenour and the present status of your daughter I act under section 18 (1) of the Sentencing and Penalties Decree and impose 15 years as non parole period.
    
19. You are sentenced to 18 years imprisonment and you will not be eligible for parole until your serve 15 years imprisonment.
    
20. 30 days to appeal.
    

S. Thurairaja
Judge

At Lautoka
8th June 2012

Solicitors : The Office of the Director of Public Prosecution for State
Haroon Ali Shah Esquire for the Accused