State v Rokolaba - Sentence [2012] FJHC 1198; HAC057.2011 (6 July 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 57 OF 2011

BETWEEN:

STATE

AND:

LEPANI ROKOLABA

Counsels: Mr. S. Babitu for the State
Mr. T. Lee for the Accused

Date of Trial: 25th June – 3rd July, 2012

Date of Summing Up: 3rd July, 2012

Date of Judgment: 4th July, 2012

Date of Sentence
Hearing: 5th July, 2012

Date of Sentence: 6th July, 2012

SENTENCE

1. The Accused above named is convicted for three counts of Rape, punishable under section 207 (1) of the Crimes Decree 44 of 2009.

2. The Accused had raped his own niece (elder brother's daughter) who was 16 years old.

Law

3. Section 207 (1) of the Crimes Decree prescribes imprisonment for life as maximum sentence for the offence of Rape.

Tariff

4. Tariff for the offence of Rape was discussed in many cases it ranges from 10 to 16 years imprisonment.

5. In William Christopher Millbery & 2 Others vs. R (2002) EWCA Crim. 2891 (09 December 2002) the Court held:

"22. The Panel confirms the 15 years and upwards starting point for a campaign of rape. This is recommended where the offender has repeatedly raped the same victim over a course of time as well as for those involving multiple victims."

6. In Mohammed Kasim v The State (unreported) Fiji Court of Appeal Cr. Case No. 14 of 1993; 27 May 1994 the Court of Appeal observed (at p.6):

"We consider that in any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment of seven years. It must be recognized by the Courts that the crime of rape has become altogether too frequent and that the sentences imposed by the Courts for that crime must more nearly reflect the understandable public outrage. We must stress, however, that the particular circumstances of a case will mean that there are cases where the proper sentence may be substantially higher or substantially lower than that starting point."

7. In State v Lasaro Turagabeci [ 1996] FJHC 173; HAC 0008.1996S (27 November 1996) Pain J. said:

"The Courts made it clear that rapists will be dealt with severely. Rape is generally regarded as one of the gravest sexual offences. It violates and degrades a fellow human being. The physical and emotional consequences to the victim are likely to be severe. The Courts must protect women from such degradation and trauma. The increasing prevalence of such offending in the community calls for deterrent sentences."

8. In a case with some similarities to this case Shameem J in The State v Navauniani Koroi (unreported) Cr. App. Case No. HAA0050.2002S arrived at a sentence of 12 years and explained:

"Taking the 7 years as the starting point, I increase the term by two years for the young age of the complainant, and a further three years for the fact that she is your daughter. I add a further year for the resulting pregnancy. I reduce the term by one year for the guilty plea and other mitigation ...."

9. In The State v Peniasi Senikarawa (unreported) High Court Suva Cr. Case HAC 0017.2008S; 20 May 2003 the accused was sentenced to 11 years imprisonment. Shameem J started on the tariff at 7 years. The mitigation was that the accused had a good character, was hardworking and struggling to raise his son single handed. But for being in breach of his position of trust to his 14 year old step-daughter, for the beatings he gave her, and for the fact that she had to give evidence twice, the court imposed a further 4 years.

"The Courts made it clear that rapists will be dealt with severely. Rape is generally regarded as one of the gravest sexual offences. It violates and degrades a fellow human being. The physical and emotional consequences to the victim are likely to be severe. The Courts must protect women from such degradation and trauma. The increasing prevalence of such offending in the community calls for deterrent sentences."

10. In Inoke Buli v The State (unreported) Court of Appeal, Fiji Cr. App. No. AAU0003.00S; 24 May 2011 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.

11. State v Talenasila Criminal Case No. HAC 11 of 2010 – The Court held that rape and indecent assault are abominable and are becoming too common in Fiji. The authorities state that rape of children must incur a starting point of 10 years. The accused was sentenced to 14 years imprisonment for the count of rape and 4 years imprisonment for each count of indecent assault. The sentences for the two counts of indecent assault were to be served concurrently but pursuant to Section 17 of the Sentencing and Penalties Decree 2009, the 2 years of those sentences was to be served consecutively to the rape sentence. The total period of imprisonment therefore was a term of 16 years imprisonment.

12. State v Sailosi Selebula (2010) HAC 148 of 2010 – The Court held that a single count of rape should properly reflect the complete abhorrence that members of the public feel towards adults who abuse young children in their case. The Court stated that a sentence in the region of 10 years would be appropriate. The accused was sentenced to 15 years imprisonment reduced to 14 years for good character. A non-parole period of 11 years was imposed.

13. In R v M [1988] VSCA 68 (7 October 1998) the Supreme Court of Victoria – Court of Appeal held for the count of oral rape that the accused be sentenced to 6 years. We wish to draw attention to the fact here that the complainant was an adult and also the accused had been charged for other offences in this case. But the seriousness of the count of oral rape still reflects the sentence given and in the case before the Court this involves a child.

14. 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."

15. In the case of State v Tauvoli [2011] FJHC 216; HAC 027.2011 (18 April 2011) the Court in this case stated that:

"Rape of children is a very serious offence indeed and it seems to ber very prevalent in Fiji at the time. The legislation has dictated harsh penalties and the Courts are imposing those penalties in order to reflect societies abhorrence for such crimes. Our nations children must be protected and they must be allowed to develop to sexual maturity unmolested. Psychologists tell us that the effect of sexual abuse on children in their later development is profound."

16. The victim impact report was filed in Court unveils following factors:

1. The victim continually experiencing discharge from her vagina;
2. She is emotionally upset and very often getting flashback of what happened to her;

100. Most of the time she is withdrawn and not trusting any men;

4. She is differently treated by her family and friends;
5. She had estranged her relationship with parents and relatives.
   

17. Considering the above factors I commence your sentence at 14 years imprisonment.

18. Aggravating factors:

1. Victim is your niece and you betrayed the bond and trust between uncle and niece;
2. You made 16 year old young girl sexually active;

100. You made the young girl to feel useless and frustrated;

4. You continually abused her;
5. You are not remorseful in fact while you are giving evidence you took pride of having sex with your niece.
   

Considering the above aggravating factors I increase your sentence by 5 years. Now your sentence is 19 years.

19. Mitigating circumstances:

1. Looking after your elderly parents;
2. Period spent in remand custody;

100. Married with two children;

4. Sole breadwinner.
   

20. Considering all above mitigating circumstances I reduce your sentence by 4 years. Now your sentence is 15 years imprisonment.

21. You have admitted you have 10 previous convictions out of which 6 are within the operational period. Your previous convictions were not considered as aggravating factors. Your Counsel claims that you have no previous convictions on sexual offences. Anyhow I am unable to grant you any discount because some of the offences are very serious.

22. According to 18 (1) of the Sentencing & Penalties Decree I impose 11 years as non-parole period. You will not be eligible for any parole until you complete 11 years in custody.
You are sentenced to 15 years imprisonment with 11 years as non-parole period.

23. Under the Domestic Violence Decree I declare the victim as Protected Person and you are issued with following domestic violence restraining order.

"You should not:

1. Physically assault or sexually abuse the protected person;
2. Threaten to physically assault or sexually abuse the protected person;

100. Damage or threaten to damage any property of the protected person;

4. Threaten, intimidate, or harass the protected person;
5. Behave in an abusive, provocative or offensive manner towards the protected person;
6. Encourage any person to engage in behavior against a protected person, where the behavior if engaged in by the respondent would be prohibited by the order.
   

24. 30 days to appeal to Court of Appeal.

S. Thurairaja
Judge

At Lautoka
6th July 2012

Solicitors: The Office of the Director of Public Prosecution for State

Legal Aid Commission for the Accused