State v Domona [2013] FJHC 121; HAC042.2013 (19 March 2013)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 042 OF 2013

BETWEEN:

STATE

AND:

APOLOSI DOMONA

Counsel : Mr. S. Babitu for the State
Mr. T. Lee for the Accused

Date of Sentence : 19 March 2013

SENTENCE

[1] The Accused above named was charged before the Magistrate for raping his daughter which is punishable under section 149 of 150 of the Penal Code.

[2] After the conclusion of the trial the Learned Magistrate referred the matter to the High Court for sentencing.

Law:

[3] Section 190 of the Criminal Procedure Degree states as follows:

"190. — (1) Where –

(a) a person over the age of 18 years is convicted by a magistrate for an offence; and

(b) the magistrate is of the opinion (whether by reason of the nature of the offence, the circumstances surrounding its commission or the previous history of the accused person) that the circumstances of the case are such that greater punishment should be imposed in respect of the offence than the magistrate has power to impose —

the magistrate may, by order, transfer the person to the High Court for sentencing.

(2) If the person is transferred under sub-section (1) to the High Court, a copy of the order for transfer and of the charge in respect of which the person was convicted shall be sent to the Chief Registrar of the High Court.

(3) The High Court shall enquire into the circumstances of the case and may deal with the person in any manner in which the person could be dealt with if the person had been convicted by the High Court.

(4) A person transferred to the High Court under this section has the same right of appeal to the Court of Appeal as if the person had been convicted and sentenced by the High Court.

(5) The High Court, after hearing submissions by the prosecutor, may remit the person transferred for sentence in custody or on bail to the Magistrates Court which originally transferred the person to the High Court and the person shall then be dealt with by the Magistrates Court, and the person has the same right of appeal as if no transfer to the High Court had occurred."

[4] When the case was first mentioned in this Court I asked both counsels and the Accused whether they accept the transfer and the jurisdiction of this Court. Both counsels and the Accused said they have no objection and they concede the jurisdiction.

[5] At the sentencing hearing both counsels moved one week time to file their written submissions. Defence counsel and Accused informed Court that the Accused will neither give evidence nor call witness, but he will only file written submissions. Accordingly, both counsels field their written submissions.

Background:

[6] The Accused is the father of the virtual Complainant. The Complainant was born on 18th April 1992. In 2006 she was living at Lautoka with her parents. On the day of the incident she had gone to attend Loloma Festival with her aunt Lavenia Tinai. Father took her back home before the conclusion of the festival, at that time mother had gone away from the father. Once they reached home the Accused had told her to prepare dinner. The Accused had dinner with her cousin. In that night the Accused had come to her room and touched her private part. When she was sleeping she found someone on top of her, due to darkness in the room she couldn't recognize the person. She woke up and found her ¾ pants and the panty were down up to her knees. She didn't see the father in the room. She pulled the dress up and went back to sleep, when she continued with sleeping she had found her father on top of her and inserting his penis into her vagina. She tried to push him away and cried. She had not given consent to this penetration. She also told Court that since 2004 (when she was in class 7) father, the Accused used to touch per private parts.

On the following day Complainant had told the incident to her aunty and she made the complaint to the police.

[7] After long and contested trial the Learned Magistrate had found the Accused guilty and convicted the Accused as charged.

[8] According to Section 190 of the Criminal Procedure Decree, this Court is entrusted to sentence the Accused. Accordingly I proceed to sentence the Accused Apolosi Domona.

Law:

[9] Section 150 prescribed imprisonment for life as maximum sentence.

Tariff:

[10] This is a case of incesteral rape, the tariff varies from 10 years to 16 years. I have discussed this tariff in my sentencing remarks in State v AV 87 of 2011.

[11] Considering the nature of the offence and you are being the biological father of the victim, ruined her life is unacceptable hence I commence your sentence at 16 years imprisonment.

[12] Aggravating factors

1. You are the biological father;
   
2. Complete breach of trust of father daughter relationship;
   

100. You were 48 years and she was 14 years old child;
     

4. You made the child to feel her life is totally wasted and her loss of her dignity;
   

Considering all I increase your sentence by 4 years now your sentence is 20 years imprisonment.

[13] Mitigating circumstance

1. You are first offender;
   
2. Your period in remand (3 months)
   

100. You claim you have some illness in the liver (nothing submitted to support your claim)
     

4. You are divorced from your wife
   

Considering all I reduce your sentence by 2 years now your sentence is 18 years imprisonment.

[14] Your counsel moves to suspend your sentence fully or partially or to consider community work.

[15] The offence you committed is unpardonable. Every children depends on their parents, especially the girls has a hero worship attachment towards their father. You took advantage of your position and raped your daughter who was 14 years old. I do not think any fair minded person will consider a lenient sentence on an incesteral rape case like this.

[16] I act under Section 18(1) of the Sentencing & Penalties Decree and impose 16 years as non parole period.

[17] You are sentenced to 18 years imprisonment with 16 years non parole period.

[18] 30 days to appeal to Court of Appeal.

S. Thurairaja
Judge

At Lautoka
19 March 2013

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