State v RPR [2012] FJHC 1419; HAC75.2011 (16 November 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 75 OF 2011

BETWEEN:

STATE

AND:

RPR

Counsel : Mr. T. Qalinauci for the State
Accused – In Person

Date of Sentence : 16th November 2012

SENTENCE

1. Name and identity of the virtual Complainant is suppressed on the request of the State Counsel.
   
2. The Accused above named is charged with one count of Rape punishable under Section 207(1) (2) (b) of the Crimes Decree.
   
3. The accused is the paternal grandfather of the virtual complainant (victim). The victim was 7 years old and the accused was 74 years old. On the 13th January, 2011 he had put his hands into pants of the victim and fondled her vagina. This had been seen by the mother of the victim. She complained to her husband and the Accused was evicted from the house. Subsequently it was reported to Police later and the child was medically examined 1 ½ months after the incident and found that the hymen of the victim was not intact.
4. After the trial the Assessors unanimously found the accused guilty as charged.
   
5. Considering all evidence before the court and the verdict of the Assessors I found the accused guilty for Rape and convicted under Section 207(1) of the Crimes Decree.
   

LAW:

6. Section 207 (2) (b) of the Crimes Decree states as follows:
   

"A person rapes another person if –

The person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person's body that is not a penis without the other person's consent."

7. In United Kingdom Section 5(1) (2) of the Sexual Offences Act 2003 states:
   

"(1) A person commits an offence if:-

(a) He intentionally penetrates the vagina, anus or mouth of another person with his penis, and

(b) The other person is under 13.

(2) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life."

8. The maximum sentence prescribed by Section 207 (1) is imprisonment for life.
   

TARIFF:

9. Tariff for the offence of Rape of child is between 10 to 16 years imprisonment. 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".

10 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."

11 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."

12 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....."

13 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.

14 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.

15 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.

16 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.

17 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."

18 After carefully considering the circumstances of the case I commence your sentence at 12 years imprisonment.

19 Aggravating factors:

(a) The child is your granddaughter. (Son's daughter)

(b) She was 7 years old.

(c) Absolute betrayal of trust as a paternal grandfather.

(d) Victim has sustained irreparable damage.

(e) You made the child victim insecure.

Considering all I increase your sentence by 5 years. Now your sentence is 17 years imprisonment.

20 Mitigating Circumstances:

(a) You claim you are remorseful.
(b) You claim you seek forgiveness.
(c) Your age (this can be treated as aggravating factor also).

Considering above circumstances I reduce your sentence by 3 years. Now your sentence is 14 years imprisonment.

21 The State Counsel submits that you were in remand for 20 months. I consider the period as period in imprisonment and reduce 3 years from your sentence. Now your sentence is 11 years imprisonment.

22 At the trial you said "The child is my bone to bone, flesh to flesh and blood to blood". I consider the statement very seriously. Presently abusing of children by the elder members of the family becoming prevalent. This cannot be accepted. If it continues it will ruin the root of our family bond which may result in an insecure youth in the future therefore I act under Section 18(2) of Sentencing and Penalties Decree and refuse to appoint a non-parole period.

23 Considering the relationship between you and the victim I invoke the powers under the Domestic Violence Decree (DVD) and impose a permanent Domestic Violence Restraining Order (D.V.R.O). You are hereby prohibited to have any sort of contact with your granddaughter from the date herein.

24. You have 30 days to appeal to the Court of Appeal.

S. Thurairaja
Judge

At Lautoka
16th November 2012

Solicitors: The Office of the Public Prosecution for State
Accused appeared in Person