State v Namado [2012] FJHC 1173; HAC094.2010S (22 June 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 094 OF 2010S

STATE

vs

ILIESA NAMADO

Counsels : Mr. L. Sovau for the State
Mr. T. Muloilagi for Accused
Hearings : 29th to 31st May and 1st June, 2012
Summing Up : 4th June, 2012
Judgment : 4th June, 2012
Sentence : 22nd June, 2012

SENTENCE

1. In a judgment delivered on 4th June 2012, the court found you guilty of three counts of "indecent assault", contrary to section 154(1) of the Penal Code, chapter 17, and one count of "rape", contrary to section 207(1) and 2(b) of the Crimes Decree 2009. The court then convicted you of the above counts.
   
2. The facts were briefly as follows. You were married with five children, and you lived in Waiyanitu, Navua. The complainant, who was 11 years old at the time, came to live with you and your family. She attended Nakavu Village School from 2006 to 2010, first as a class 5 student. She was your niece, by marriage to her aunty. You and your wife looked after her while she was attending school. Unbeknown to the family, you began to abuse the complainant from January 2006. While she was asleep, you crept up to her, took off her top, touched and squeezed her breast. Between January and May 2009, you again did the above to her. She was 14 year old, at the time.
   
3. Between June and September 2009, you again went to her when she was asleep, touched her thighs and touched her vagina. You were in your 50's at the time, and the complainant was 14 years old. The abuse reached another level in February, 2010. She was changing her clothes in the house. You came to her, told her to lie down, and you inserted your finger into her vagina. You then rubbed your penis on her vagina. On all the above episodes, the complainant never gave her consent, and you knew she was not consenting to your unlawful acts, at the time. Consequently, you were found guilty of three indecent assault charges, and one rape charge.
   
4. I have taken note of your plea in mitigation. I note you are a first offender, in that you have committed no offence in the last 10 years. You said, you are 61 years old, married with five children. You said, you are a subsistence farmer, and you look after your family. I note you are a church elder, and a member of the Seventh Day Adventist Church. I note you have been remanded in custody for the last 2 years.
   
5. Rape is a serious offence. The maximum sentence is life imprisonment. For adults, the tariff is a sentence between 7 to 15 years imprisonment: see Mohammed Kasim v The State, Criminal Appeal No. 21 of 1993, Fiji Court of Appeal; Bera Yalimaiwai v The State, Criminal Appeal No. AAU 0033 of 2003, Fiji Court of Appeal; Navuniani Koroi v The State, Criminal Appeal No. AAU 0037 of 2002, Fiji Court of Appeal and Viliame Tamani v The State, Criminal Appeal No. AAU 0025 of 2003, Fiji Court of Appeal.
   
6. "Indecent assault" carries a maximum sentence of 5 years imprisonment. The tariff for "indecent assault" is a sentence between 1 to 4 years imprisonment. The more serious the indecent assault is, the higher the sentence will be: see Ratu Penioni Rakota v The State, Criminal Appeal No. HAA 0068 of 2002S, High Court, Suva; Sikeli Nayate v The State, Criminal Appeal No. HAA 46 of 2008, High Court, Suva. The actual sentence on the above offences, will depend on the aggravating and mitigating factors.
   
7. The mitigating factors in this case were as follows:
   
   • (i) At the age of 61 years, this is your first offence;
   • (ii) You are married with 5 children, and you are the sole breadwinner;
   • (iii) You have been remanded in custody for more than 2 years, and as such, you have effectively served 3 years imprisonment, when taking into account the 1/3 discount prisoners often get when a custodial sentence is given.
     
8. The aggravating factors were as follows:
   
   • (i) Your offending amounts to a serious breach of parental trust. The complainant was your niece. You were her uncle. She looks to you as a parent. She came to you to further her studies at Nakavu Village School. She came from a broken family. She trusted you. Yet you secretly indecently assaulted her on three separate occasions, between January 2006 and September 2009. In February 2010, you raped her by inserting your finger into her vagina.
     
   • (ii) Your offending against the complainant showed your utter disregard for her right to privacy, including her dignity;
     
   • (iii) You completely disregarded her right to personal safety, and her right to be treated as a human being.
     
9. I will start with the rape charge, as it is the most serious of the offences, you committed. On count no. 4 (rape), I start with a sentence of 9 years imprisonment. For the aggravating factors, I increase the same by 4 years to 13 years imprisonment. I decrease the same by 5 years for the mitigating factors, leaving a balance of 8 years imprisonment. On the rape charge, I sentence you to 8 years imprisonment.
   
10. On count no. 1 (indecent assault), I start with a sentence of 2 years imprisonment. I increase the same by 2 years to 4 years imprisonment, for the aggravating factors. I deduct the same by 3 years to 1 year imprisonment, for the mitigating factors. On count no. 1, I sentence you to 1 year imprisonment.
    
11. As for count no. 2 and 3, I repeat the above process and sentence.
    
12. Given the principle of totality of sentencing, the sentences in counts no. 1, 2, 3 and 4 are all concurrent to each other, that is, a total sentence of 8 years imprisonment. I sentence you to a total sentence of 8 years imprisonment. You must serve a non-parole period of 5 years imprisonment, before you are eligible for parole.
    

Salesi Temo
JUDGE

Solicitors for the State : Office of Director of Public Prosecution, Suva.
Solicitor for Accused : Mr. T. Muloilagi, Barrister and Solicitor, Suva.