State v Roba [2012] FJHC 860; HAC133.2011S (10 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 133 OF 2011S

STATE

vs

PECELI ROBA

Counsels: Mr. M. Maitava for State
Mr. N. Nawaikula for Accused
Hearings: 8th to 9th February, 2012
Sentence: 10th February, 2012

SENTENCE

1. On 8th February, 2012, the case was set down for a hearing. In the presence of his counsel, the accused pleaded not guilty to the following charge:
   

Statement of Offence

RAPE: contrary to section 207(1) and 207(2)(b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

PECELI ROBA on the 19th April 2011 at Dagai Village, Kadavu, in the Southern Division penetrated the vagina of AS with his finger without the consent of the said AS.

2. The prosecution called four witnesses on 8th February 2012, that is, the complainant, her mother, her father and WPC 3148 Eileen Fisher of Kadavu Police Station – the police investigating officer. The case was then adjourned to 9th February 2012, to enable the prosecution to locate his last witness.
   
3. On 9th February 2012, Mr. Nawaikula, on behalf of the accused, indicated that the accused wanted to change his plea to guilty. The court enquired with counsel whether or not the accused's intention to plead guilty was done so voluntarily on his part, and that no-one forced him to take this stand. Defence Counsel answered that, the accused's intention was done so voluntarily, and no-one forced him to take his present stand.
   
4. The charge was then read and explained to the accused, in the presence of his counsel. He said, he understood the charge, and entered a guilty plea. The prosecution read the summary of facts to court. Briefly, it was as follows. The complainant was a female and aged 9 years 5 months, at the time. The accused was aged 69 years old at the time. The two resided in the same village, and their houses were near to each other. They were related, that is, the victim was the accused's grand-daughter. The victim lived with her parents, and two brothers and six sisters. On 19th April, 2011, the accused pulled the victim into his kitchen, forcefully removed her clothes and inserted a finger into her vagina. The matter was reported to the police, and hence this court hearing.
   
5. The court checked with defence counsel to see that the accused was admitting to the ingredients of the offence. Mr. Nawaikula said that, the accused admitted that, he inserted his finger into the child complainant's vagina on 19th April 2011, and he knew the victim did not consent. He also said, the accused knew the child victim was incapable of giving consent to such matters. As a result, the court found the accused guilty as charged and convicted him accordingly.
   
6. The prosecutor said, the accused was a first offender. His antecedent report was submitted to court. He then made his verbal plea in mitigation, through counsel. He was 70 years old, married to his 68 year old wife, with 5 children aged between 22 and 32 years. He reached class 4 education and was a villager all his life. He lived with his family in Kadavu, and is sickly. He said, he pleaded guilty and therefore saved the court's time.
   
7. Previously, what you did was often classified as an indecent assault, in the repealed Penal Code, Chapter 17. Under the Crimes Decree 2009, it is now classified as rape, and as such, the penalties accord to rape must apply.
   
8. 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.
   
9. Since the complainant in this case was a juvenile, that is, age 9 years 5 months, the tariff for the rape of children is a sentence between 10 to 15 years: see Mark Mutch v The State, Criminal Appeal No. AAU 0060 of 1999, Fiji Court of Appeal; State v Lepani Saitava, Criminal Case No. HAC 10 of 1007, High Court, Suva; The State v AV, Criminal Case No. HAC 192 of 2008, High Court, Suva; State v VV, Criminal Case No. HAC 084 of 2009, High Court, Suva and State v Waqabaca, Criminal Case No. HAC 139 of 2008, High Court, Suva. The actual sentence will depend on the mitigating and aggravating factors.
   
10. The mitigating factors were as follows:
    
    • (i) At the age of 70, this was your first offending;
      
    • (ii) Although the complainant, her parents and the police investigating officer gave evidence, you nevertheless pleaded guilty, and therefore saved the court's time;
      
    • (iii) You are sickly and elderly;
      
    • (iv) It appeared you are remorseful, by pleading guilty;
      
    • (v) You are married, with five children aged between 22 and 32 years old.;
      
    • (vi) Your wife is 68 years old.
      
11. The aggravating factors were as follows:
    
    • (i) You are related to the child complainant. Her father was your nephew. In the village context, the child complainant looked to you as her grandfather. You are in a position of trust to this child. You are supposed to look after her and care for her. Yet, you exploited her trust in you. You forced her to your kitchen, forcefully took off her clothes, indecently assaulted her by kissing and touching her breast, then you inserted your finger into her vagina. This was a serious breach of her trust in you;
      
    • (ii) You choose to defend this case, thus necessitating the need to call the child complainant, to relive her ordeal in the courtroom by giving evidence;
      
    • (iii) By committing the offence, you showed utter disregard to the child complainant's right to personal safety and dignity.
      
12. I start with a sentence of 10 years imprisonment. For the aggravating factors, I increase the sentence by 3 years, giving a total of 13 years. For the mitigating factors, I decrease the sentence by 5 years, leaving a balance of 8 years.
    
13. For the rape of the 9 year old 5 months child, via inserting a finger into her vagina, I sentence you to 8 years imprisonment. You are to serve a non-parole period of 6 years.
    

Salesi Temo
JUDGE

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