State v Rainima [2012] FJHC 945; HAC034.2011 (15 March 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 034 OF 2011S

STATE

vs

POATE RAINIMA

Counsels : Ms. P. Madanavosa and Ms. L. Koto for the State
Accused – In Person
Hearings : 8th March, 2012
Sentence : 15th March, 2012

SENTENCE

1. On 8th March, 2012, you appeared in court on the following information:
   

FIRST COUNT

Statement of Offence

RAPE: contrary to section 149 and 150 of the Penal Code, Cap 17.

Particulars of Offence

POATE RAINIMA between the 30th day of April 2002 to the 31st day of August 2002 at Nadawa, in the Central Division, had unlawful carnal knowledge of a girl namely SV without her consent.

SECOND COUNT

Statement of Offence

INDECENT ASSAULT: contrary to section 154(1) of the Penal Code, Cap 17.

Particulars of Offence

POATE RAINIMA between the 1st day of December 2006 to the 31st day of December 2006 at Nadawa, in the Central Division, unlawfully and indecently assaulted a girl namely SV.

THIRD COUNT

Statement of Offence

INDECENT ASSAULT: contrary to section 154(1) of the Penal Code, Cap 17.

Particulars of Offence

POATE RAINIMA between the 1st day of May 2007 to the 31st day of August 2007 at Nadawa, in the Central Division, unlawfully and indecently assaulted a girl namely SV.

FOURTH COUNT

Statement of Offence

RAPE: contrary to section 149 and 150 of the Penal Code, Cap 17.

Particulars of Offence

POATE RAINIMA between the 1st day of May 2007 to the 31st day of August 2007 at Nadawa, in the Central Division, had unlawful carnal knowledge of a girl namely SV without her consent.

FIFTH COUNT

Statement of Offence

INDECENT ASSAULT: contrary to section 154(1) of the Penal Code, Cap 17.

Particulars of Offence

POATE RAINIMA between the 1st day of January 2008 to the 31st day of April 2008 at Nadawa, in the Central Division, unlawfully and indecently assaulted a girl namely SV.

SIXTH COUNT

Statement of Offence

SEXUAL ASSAULT: contrary to section 210(1)(a) and (2) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

POATE RAINIMA on the 8th day of January 2011, at Nadawa in the Southern Division, had unlawfully and indecently assaulted a girl namely SV by bringing his mouth into contact with the vagina of SV.

SEVENTH COUNT

Statement of Offence

SEXUAL ASSAULT: contrary to section 210(1)(a) and (2) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

POATE RAINIMA on the 16th day of January 2011, at Nadawa in the Southern Division, had unlawfully and indecently assaulted a girl namely SV by bringing his mouth into contact with the vagina of SV.

2. You told the court that your application for legal aid was denied by the Legal Aid Commission. You waived your right to legal counsel, and said that, you would represent yourself. As a result, the charges were read and explained to you. You said, you understood them, and you pleaded guilty to all of them. You told the court that, no one forced you to plead guilty to all the counts, and that you did so out of your own free will.
   
3. The prosecutor then read her summary of facts in court. Briefly, they were as follows. The complainant female child was born on 10th October, 1996, and resided with her parents, at Nadawa in the Central Division. Her grandmother was also living with them. The grandmother's husband (ie. her grandfather) died. In 1998, the accused married the grandmother, and started living with the complainant's family. So the accused became the female complainant's step grandfather.
   
4. Between the 30th April to 31st August 2002, when the complainant was about 6 years old, the accused forcefully pulled her into his bedroom. The time was between 3 to 4pm, and her parents were asleep in their room. Her grandmother was away selling crabs at the market. The accused, who was 45 years old at the time, forcefully pulled her clothes down, got on top of her and thrust his penis into her vagina. He later ejaculated, and the complainant's vagina bled as a result. [Count No. 1].
   
5. The abuse continued between the 1st to 31st December 2006, when the complainant was now 10 years old. The accused was now 49 years old. The accused again forcefully pulled the complainant into his bedroom, took off her clothes, and began licking her whole body, including sucking her vagina and inserting his finger into her vagina. [Count No. 2]. Five months later, between 1st May and 31st August, 2007, the accused forcefully took the complainant to a nearby mangrove. There he forcefully told her to lie on the sand. He then sucked the whole of her body, including her vagina. Later, he penetrated her vagina, with his penis. [Counts No. 3 and 4].
   
6. Between the 1st January to 31st April 2008, the accused again forcefully pulled the complainant into his room. He closed the door. He forcefully took off her clothes, and sucked her vagina [Count No. 5]. This abuse was again repeated on 8th January, 2011. The complainant was now 15 years old, while the accused was 54 years old. The accused took the complainant to the mangroves on the pretext of getting a pole for their clothes line. At the mangrove, the accused forced the complainant to lie on the sand, forcefully took off her clothes, and then sucked her vagina [Count No. 6]. On 16th January 2011, the accused again forced the complainant to the mangrove, and repeated the above abuse to her ie. sucked her vagina [Count No. 7]. On 23rd January 2011, the above abuse were reported to police. An investigating was carried out. The accused was arrested on 25th January, 2011. He was caution interviewed on 27th January, 2011, wherein he admitted the above offences. He was later charged for the above offences.
   
7. Since the accused was unrepresented, the court checked with him to see that, all the ingredient of the offences, were admitted by him. On the two charges of rape [ie. Count Nos. 1 and 4], the complainant was allegedly raped when she was 6 years (2002) and 11 years old (2007). So, the rape involved a child. On the two rape counts, the accused admitted that he penetrated the complainant's vagina with his penis. This in itself is sufficient to ground a conviction for rape against a child, since a child under 13 years is incapable, as a matter of law, of giving her consent. And by penetrating the child's vagina with his penis, an accused is presumed to know that a child is incapable of giving her consent, at the time of sexual intercourse.
   
8. On the "indecent assault" charges [ie. Count Nos. 2,3 and 5], the accused admitted that, he sucked and licked the complainant's vagina, at the material times, and in the case of count No. 2, he also inserted a finger into the complainant's vagina. He agreed that the above acts were indecent, and that the complainant did not consent, and he knew she was not consenting at the time.
   
9. On the "sexual assault" charges [ie. Count Nos. 6 and 7], the accused admitted he sucked the complainant's vagina at the material times, and that the complainant never consented, and he knew she was not consenting at the time. On the basis that the accused admitted to the court all the elements of count Nos. 1 to 7, the court found him guilty as charged on all counts, and convicted him accordingly, on all those counts.
   
10. I note that you haven't offended in the last 10 years, and you have no previous conviction for any sexual offence. I also note you have no objections against your antecedent report and the victim-impact report. I have also considered your verbal plea in mitigation.
    
11. We will first consider the "rape" counts, because they are the most serious of the offences, then the "sexual assault" offences, and last, the "indecent assault" matters.
    
12. 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.
    
13. Since the complainant in this case was a child, the tariff for the rape of a child 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 2007, 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.
    
14. "Indecent assault" carries a maximum sentence of 5 years imprisonment. The tariff for "indecent assault" is a sentence between 1 to 4 years imprisonment. The more serious the indecent assault is, the higher the sentence will be: see Ratu Penioni Rakota v The State, Criminal Appeal No. HAA 0068 of 2002S, High Court, Suva; Sikeli Nayate v The State, Criminal Appeal No. HAA 46 of 2008, High Court, Suva.
    
15. "Sexual assaults" carries a maximum sentence of 14 years imprisonment. It is an aggravated form of indecent assault. The tariff for this offence has yet to be established.
    
16. The mitigating factors in your case were as follows:
    
    • (i) You are 55 years old, married with no children;
    • (ii) You reached Class 6 education;
    • (iii) You have committed no offence in the last 10 years, and this is your first sexual offending;
    • (iv) You pleaded guilty to the charges, although this was approximately 1 year 1 month, after the first call in the High Court. Consequently, you have saved the court's time, and avoided the need for the complainant to relive her ordeal in the courtroom, by giving evidence;
    • (v) It appears you are remorseful, and as a result you have voluntarily admitted your guilt, on all the offences;
    • (vi) You have been remanded in custody, since your first appearance in the Nasinu Magistrate Court ie. from 28th January 2011 to 15th March 2012 – approximately 1 year 1 month 15 days.
      
17. The aggravating factors were as follows:
    
    • (i) This was the worst type of sexual abuse that can ever happen to a family. You had no blood connection to the complainant. Your case involved a serious of breach of trust between a step grandfather and a granddaughter. The complainant was born on 10th October 1996. She stayed in her family's home, with her parents and grandmother. Her grandfather had passed on. In 1998, you moved into the complainant's family, by marrying her grandmother. The complainant's family accepted you. They trusted you. Little did they know that they were subjecting themselves to a conniving and deceitful person. When the complainant was 6 years old, you raped her in their very own house, while her parents were resting, and her grandmother away at the market. You secretly committed indecencies on her on various occasions, while pretending that everything was well in the family. You again raped her when she was 11 years old. Then you committed further indecencies on her until January 2011, when the matter was reported to police. You will certainly have to pay for what you have done to this child, and this family.
      
18. On the rape charge (Count No. 1), I start with a sentence of 11 years imprisonment. For the aggravating factors, I increase the sentence by 7 years to 18 years imprisonment. For the mitigating factors, I decrease the sentence by 5 years to 13 years imprisonment. On count No. 1, I sentence you to 13 years imprisonment.
    
19. On the "indecent assault" charge (Count No. 2), I start with a sentence of 2 years imprisonment. For the aggravating factors, I increase the sentence by 2 years to 4 years imprisonment. For the mitigating factors, I decrease the sentence by 2 years to 2 years imprisonment. On count No. 2, I sentence you to 2 years imprisonment.
    
20. On the "sexual assault" charge (Count No. 6), I start with a sentence of 4 years. I add 2 years for the aggravating factors making a total of 6 years. I decrease it by 2 years for the mitigating factors, leaving a balance of 4 years. On count No. 6, I sentence you to 4 years imprisonment.
    
21. On the other "rape" charge, (Count No. 4), I repeat the process and sentence in count No. 1.
    
22. On the other "indecent assault" charges (ie. Count Nos. 3 and 5), I repeat the process and sentence in count No. 2.
    
23. On the other "sexual assault" charge (ie. Count No. 7), I repeat the process and sentence in count No. 6.
    
24. Your sentences are as follows:
    

Count No. 1	- Rape	-13 years imprisonment
Count No. 2	- Indecent Assault	-2 years imprisonment
Count No. 3	- Indecent Assault	-2 years imprisonment
Count No. 4	- Rape	-13 years imprisonment
Count No. 5	- Indecent Assault	-2 years imprisonment
Count No. 6	- Sexual Assault	-4 years imprisonment
Count No. 7	- Sexual Assault	-4 years imprisonment

25. Given the principles of totality of sentencing, I order that all the above sentences are concurrent to each other, that is, a total sentence of 13 years imprisonment. I sentence you to 13 years imprisonment. You are to serve a non-parole period of 12 years imprisonment. I order so accordingly.
    

Salesi Temo
JUDGE

Solicitors for the State : Office of Director of Public Prosecution, Suva.
Solicitor for Accused : In Person