State v Tubailagi [2012] FJHC 1367; HAC123.2011S (12 October 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 123 OF 2011S

STATE

vs

ANARE TUBAILAGI

Counsels : Ms. I. Whippy for State
Mr. T. Muloilagi for Accused

Hearings : 1st to 3rd October, 2012
Summing Up : 5th October, 2012
Judgment : 5th October, 2012
Sentence : 12th October, 2012

SENTENCE

1. On 5th October, 2012, in a judgment delivered by the court, you were found guilty and convicted on the following offence:
   

Statement of Offence

INCEST BY RELATIVE: Contrary to section 223 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

ANARE TUBAILAGI on the 31st day of May, 2010 at Laucala Island in the Central Division, had unlawful carnal knowledge of his daughter namely I.S.

2. The brief facts were as follows. On 31st May, 2010, you and the complainant went on a fishing trip to Laucala Island, in the Central Division. You and the complainant went looking for sea eels in the mangrove at Laucala Island. Suddenly, you hit the complainant in the back with a piece of stick, and she fell to the ground. You knew the complainant was your daughter. You then forcefully took off her clothes, and had forceful sexual intercourse with her, that is, you forcefully inserted your penis into her vagina for about ten minutes. You later told her to clean herself in the sea water. You then returned home. She reported the matter to her aunty, and later it was brought to the police's attention. An investigation was carried out, and later you were charged with incest.
   
3. "Incest by Relative", is always a serious offence. Pursuant to section 223(1) of the Crimes Decree 2009, it carries a maximum penalty of 20 years imprisonment, but if the victim is aged 13 years and less, the maximum punishment is life imprisonment. The above penalties are somewhat similar to the offence of "incest by males", pursuant to section 178 of the repealed Penal Code, Chapter 17.
   
4. In Babu Ram vs The State, Criminal Appeal No. HAA 023 of 2004L, His Lordship Mr. Justice John Connors, in the Lautoka High Court, said the following:
   

"...section 178(1) [of the Penal Code, Chapter 17] was amended by Act No. 7 of 2003 and the relevant maximum penalty was increased to 20 years imprisonment.

Prior to the amendment, it was considered that sentences of between 5 years and 3 years would be appropriate, depending upon the aggravating and mitigating factors – State v Viliame Tamani – HAC 007 of 2003S.

It would seem that this range should now be between 15 years and 9 years. If 15 years is taken as a starting point and one-third reduction is given for the early plea of guilty and the resultant sentence is 10 years. The aggravating factors including the period of time over which the offences were committed justify increasing the penalty to 12 years imprisonment....

Count No. 1 was committed when the victim was under 13 years of age and accordingly, the maximum penalty is life imprisonment.

Whilst in The State v Viliame Tamani – HAC 007 of 2003S, it was suggested that the term of 6 years would be appropriate in these circumstances as I have said earlier, that decision does not take account of the increase in penalties by virtue of Act No. 7 of 2003 and therefore, I think penalties in the range of 10 to 14 years would now be appropriate..."

5. I would adopt His Lordship Mr. Justice John Connor's view in this case, because the penalty in the amended section 178(1) of the repealed Penal Code, Chapter 17, was similar to the penalty in section 223(1) of the Crimes Decree 2009. I therefore accept that the tariff for incest against adults is a sentence between 9 to 15 years imprisonment, and the tariff for incest against children under 13 years is a sentence between 10 to 14 years imprisonment. Of course, the final sentence would depend on the mitigating and aggravating factors.
   
6. The aggravating factors in this case were as follows:
   
   • (i) In offending against the complainant, you have abused and violated the most sacred trust that exists between a father and his daughter. Your daughter looked to you as a source of strength, support, counsel and role model in her life. But you ruined all of these, when you offended against her. You abused the parental trust she placed in you.
     
   • (ii) By committing this offence, you have not only violated the moral fibre of our society which forbids sexual relationships between a father and his daughter, you also ruined your family life, in that you will have to be put away for a while;
     
   • (iii) By committing this offence, you showed no regards whatsoever to your daughter's rights not to abuse by her family, and you had no concern whatsoever for her future wellbeing.
     
7. The mitigating factors were as follows:
   
   • (i) You are married with 3 children to support, including your wife;
   • (ii) You have been remanded in custody from 11th May, 2011 to 12th October, 2012, that is, a period of approximately 1 year 5 months;
   • (iii) You are remorseful, and a first offender.
     
8. I start with a sentence of 10 years imprisonment. For the aggravating factors, I add 6 years, making a total of 16 years imprisonment. For the mitigating factors, I decrease the sentence by 3 years to 13 years imprisonment. For committing incest against your daughter, I sentence you to 13 years imprisonment, with a non-parole period of 11 years imprisonment.
   
9. The complainant's name is permanently suppressed from the mass media to protect her privacy, and assist her recover from her ordeal.
   

Salesi Temo
JUDGE

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