State v Kubu [2012] FJHC 1399; HAC100.2012 (30 October 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 100 OF 2012

BETWEEN:

STATE

AND:

LEPANI RAIVAU KUBU

Counsel : Mr. L. S. Sovau for the State
Mr. T.Lee for the Accused

Date of Sentence : 30th October 2012

SENTENCE

1. The Director of Public Prosecution had preferred the following charges against the Accused above named.
   

First Count

[Representative]

Particulars of Offence (a)

RAPE: Contrary to Section 207(1) and (2) (a) and (3) of the Crimes Decree No 44 of 2009.

Statement of Offence (b)

LEPANI RAIVAU KUBU between the 1st day of May to the 30th day of June 2012 at Nawaka, Nadi in the Western Division had carnal knowledge of Grace Talei aged 12 years old.

Second Count
[Representative]
Particulars of Offence

RAPE: Contrary to Section 207(1) and (2) (a) and (3) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

.LEPANI RAIVAU KUBU between the 1st day of July to the 30th day of July 2012 at Nawaka, Nadi in the Western Division had carnal knowledge of Grace Talei aged 12 years old.

2. When the case was mentioned to take plea the Accused pleaded guilty to both charges and admitted to the Summary of Facts.
   
3. According to the Summary of Facts the virtual Complainant was 13 years and 1 month born on 26.11.1998, studying in Class 7. The Accused is the step father of the Complainant. Between 1st of May to 30th June 2012 at their home in Nawaka had sexual intercourse with her, licked her vagina and fondled her breast.
   

Further from the 1st July 2012 to 31st July 2012 the Accused had sexual intercourse with her.

The virtual Complainant was a good student in the class since her quality of work came down the teacher enquired about it and found the above incidents to her. It was reported to the Police by the Assistant Head Teacher of the School.

4 State Counsel originally filed the print out of the scanned copy of the information and subsequently filed the original information in Court both are dated 3rd October 2012.

Law

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

Tariff

6. Tariff for the offence of Rape of this nature was discussed in many cases and varies from 7 years to 19 years.
   
7. When this case was mentioned the Accused who appeared on his own and pleaded guilty. The State Counsel moved time to file Summary of Facts. Time granted until the following day.
   

On the following day the State Counsel informed Court that the Complainant and her mother do not wishes to proceed with the case. Since both the victim child and mother were in Court I enquired from the child why does she wants to withdraw the complaint. At this time the Court house was cleared only the Accused, victim and her mother were present. The child reluctantly looked at the mother and said that the mother, who is the de facto wife of the Accused, wanted her to withdraw the case. I questioned the mother she admitted and said that she wants to safeguard her husband. At the beginning of the day when asked the Accused said he still maintains his plea of guilty and he sought legal assistance from Legal Aid Commission. Mr. Lee who appeared as duty solicitor confirmed his plea of guilty and submitted that he is ready with the mitigating submission.

Even after the application to withdraw the complaint, the Accused submitted through his Counsel that he is maintaining his plea of guilty.

8. Being convinced with the plea to be unequivocal I found the Accused guilty as charged and convicted him accordingly.
   
9. Considering the above circumstances I commence the sentence at 10 years imprisonment.
   

Aggravating factors

10. (a) Serious and gross breach of trust as step father and daughter;

(b) The child had been psychologically affected.

I increase your sentence by 2 years now your sentence is 12 years imprisonment.

Mitigating Circumstances

11. (a) Your very early plea;

(b) You are 1st offender;
(c ) You are genuinely remorseful;
(d) You have children and wife to look after;
(e) You seek forgiveness
(f) You maintained your guilty plea when the Complainant wants to
withdraw her complaint.

Considering all your mitigating circumstances I reduce 6 years imprisonment now your sentence is 6 years imprisonment.

12. Considering your sincere remorse and all other submissions made by your Counsel I act under Section 18(2) of the Sentencing & Penalties Decree I decline to give a non parole period. Your release will be governed by the rules and regulations of the Prison Authorities.
    
13. You are sentenced to 6 years imprisonment.
    
14. You have 30 days to appeal to the Court of Appeal.
    

S. Thurairaja
Judge

At Lautoka
30th October 2012

Solicitors:

The Office of the Director of Public Prosecution for State
Legal Aid Commission for the Accused