State v Nado [2012] FJHC 953; HAC032.2011 (16 March 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 032 OF 2011

BETWEEN:

STATE

AND:

TANIELA NADO

Ms. L. Vateitei for the State
Accused In person
Mr. T. Terere assisted Court as Duty Solicitor

Date of Hearing : 9th March, 2012.
Date of Sentence : 16th March, 2012.

SENTENCE

1. The Director Public Prosecution had preferred the following charge against the accused abovenamed.

Statement of Offence

RAPE: Contrary to Section 207 (1), (2)(b) of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

TANIELA NADO, on the 31st day of January, 2011 at Namatakula, Sigatoka in the Western Division, penetrated the vagina of KN with his finger, without her consent.

2. The accused pleaded guilty to the charge against him, being his plea to be unequivocal he was convicted by the court.

3. Taniela Nado you stand convicted for Rape punishable under Sections 207 (1), (2) (b) of the Crimes Decree 44 of 2009.

4. In the best interest of the child victim the name, and identity of the child is suppressed.

5. You admitted the summary of facts submitted by the State Counsel. I reproduce the same for easy reference.

Summary of Facts

The accused is one Taniela Nado ("Taniela"), 52 years old, originally from Vunisinu Rewa but resides in Namatakula in Sigatoka in the Western Division.

The victim is one KMN ("K"), 9 years old (Date of Birth: 25th of December 2001). She is a class 4 student and related to the accused.

On the 31st day of January 2011 at about 4pm in the afternoon, K (who then was 9 years 1 month and 6 days old) was playing with some of her friends after school when Taniela approached her and called her to follow him to a river where the villagers normally have their bath which is about 100 metres away from the village. He told her that he will give her money if she followed him. At the river, he then took off her dress she was wearing and later removed her panties and then started touching her body. He then touched her vagina and with his finger inserted his finger and penetrated K's vagina without her consent. K then told Taniela to stop after he inserted his finger inside her vagina because it was painful.

While this was happening, Kereani Corocoro ("Kereani"), 24 years old of Namatakula Village, who is a cousin of K, witnessed the entire incident as she hid behind a bush. After witnessing the act, Kereani yelled out to Taniela and asked as to what he was doing to the 9 year old girl. Taniela after being confronted by Kereani ran away from the scene. Later on the same afternoon at about 6pm, K's father KB after coming home from training asked K what had happened. She then relayed the entire incident to him. Later on, KB confronted Taniela who admitted to everything. On the same day KB then took Taniela to Korolevu Community Post where the former lodged a formal report to the Police.

Taniela was subsequently arrested and was caution interviewed where he admitted that he had touched K's vagina on two occasions in the month of November 2011. He also admitted giving her money.

K, on the other hand, was medically examined by Dr. Viliame Matatolu on the 1st of February 2011 where he found that the hymen has been perforated although there was no bleeding, semen, bruises or hematomas noted. In his professional opinion, Dr. Matatolu noted that "the patient may have been sexually harassed and the man may have used his fingers for penetration".

5. Now I consider the relevant law for sentencing. Section 207(1)(2)(c) of the Crimes Decree No.44 of 2009 states that:

"Any person rapes another person if the person penetrates the mouth of the other person to any extent with the person's penis without the other person's consent". Penalty – Imprisonment for life.

6. 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."

7. The maximum sentence prescribed by Section 207(1) is imprisonment for life. The tariff for this offence is discussed in many cases.

8. Now I consider the tariff for the offence of Rape of a 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".

9. 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."

10. 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."

11. 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 tem 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...."

12. 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.

13. 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.

14. 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.

15. State v Sailosi Selebula (2010) HAC 148 of 2010 – The Court held that a single count of rape should properly reflect the complete abhorrence tht 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.

16. In R v M [1998] VSCA 68 (7 October 1998) the Supreme Court of Victoria – Court of Appeal held for the count of oral rape that the accused be sentenced to 6 years. We wish to draw attention to the fat here that the complainant was an adult and also the accused had been charged for other offences in this case. But the seriousness of the count of oral rape still reflects the sentence given and in the case before the Court this involves a child.

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. Anticedent History of the accused person and victim impact report was produced to court and I carefully considered those two reports before deciding the quantum of the sentence.

19. Considering all I commence your sentencing at 12 years imprisonment.

20. Considering the aggravating factors against you:

(i) The victim was 9 year old girl.

(ii) She is your niece.

(iii) Gross breach of trust as an uncle.

Considering the above factors I increase your sentence by 3 years. Now your sentence is 15 years imprisonment.

21. I consider the following mitigating circumstances in favour of you:
    

(a) You have pleaded guilty at the 1st available opportunity.

(b) You are 1st offender.

(c) You are remorseful.

(d) You plead mercy from Court.

Considering all the above mitigating circumstances I reduce 7 years from your sentence. Now your sentence is 8 years imprisonment.

22. Considering Section 18(1) of the Sentencing and Penalties Decree I am imposing 6 years as non-parole period.

23. Summary

You are sentenced to 8 years imprisonment with 6 years non-parole period.

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

S. Thurairaja

JUDGE

At Lautoka

16 March 2012.