State v Rigamoto [2013] FJHC 244; HAC359.2011S (17 May 2013)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 359 OF 2011S

STATE

vs

HARRY RIGAMOTO

Counsels : Ms. L. Latu for the State
Accused in Person
Hearings : 18th and 25th April, 2013
Sentencing : 17th May, 2013

SENTENCE

1. On 18th April, 2013, you appeared in the High Court, on the following information:
   

FIRST COUNT
Representative Count
Statement of Offence

RAPE: Contrary to Section 207 (1), (2) (a), and (3) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

HARRY RIGAMOTO, between the 1st day of March 2011 to the 18th day of November, 2011 at Qaributa Settlement, Navua at the Central Division, had carnal knowledge of K. L. T. R.

SECOND COUNT
Statement of Offence

RAPE: Contrary to Section 207 (1), (2) (a), and (3) of the Crimes Decree No. 44 2009.

Particulars of Offence

HARRY RIGAMOTO on the 19th day of November, 2011, at Qaributa Settlement, Navua at the Central Division, had carnal knowledge of K. L. T. R.

2. You waived your right to counsel. You told the court that you are representing yourself. You said, you wanted to plead guilty, and you are doing so voluntarily and out of your own free will. You said, no-one pressured or forced you to plead guilty. The court was satisfied with what you said, and the information was put to you. You said, you understood the two counts, and you pleaded guilty to both of them.
   
3. On 25th April, 2013, the prosecutor read the summary of facts in court. They were briefly as follows. On 19th November, 2011, the female complainant was 10 years 4 months 27 days old. She lived with her parents, and four siblings in a house in Navua. Her father is a market vendor at Suva, while her mother does domestic duties. Her elder sister was 17 years old, next her brother aged 15 years old, then her, and her two younger sisters aged 6 and 2 years old. On 19th November, 2011, her father and 15 year old brother were at the Suva market, while she and her two younger sisters were with their mother, at home. Her elder sister was at Suva.
   
4. The accused's house was approximately 100 meters away from their house. The accused was 51 years old, married with two sons. He was alone at his house at the time. At about midday on 19th November, 2011, the young female complainant went to the accused's compound to pick some "kavika" fruits. While doing so, the accused, who she treats as her uncle, called her to join him for lunch. The accused gave her some food to eat. After that, the accused took her to his bedroom. He forced her to undress and lie naked in his bed. The accused then kissed her body, and forcefully inserted his penis into her vagina. He told her not to tell anyone about the above. The complainant later went home.
   
5. At home, she told her mother about the above. She also told her mother that the accused had previously inserted his penis into her vagina on two occasions, between 1st March and 18th November, 2011. The mother reported the matter to police. An investigation was carried out. The complainant was medically examined on the same day. On 20th November, 2011, the accused was caution interviewed by police at Navua Police Station. He admitted the above under caution. He was later charged with two counts of rape.
   
6. The court then checked with the accused to see that he had admitted all the elements of the offence of rape in counts no. 1 and 2. On both counts, the accused admitted he had unlawful sexual intercourse with the female complainant, at the material time, and that he knew she was 10 years old at the time, and was incapable of giving her consent to such matters, and he knew that, at the time he was having sex with her. As a result of the above admissions, the court found the accused guilty as charged on both counts, and convicted him accordingly on those counts.
   
7. The rape of a child is always a very serious matter. A "Child", according to section 2 of the Juvenile Act, Chapter 56, is a person who has not attained the age of fourteen years". Section 207(1) of the Crimes Decree 2009 prescribed a maximum sentence of life imprisonment for the offence of rape. For the rape of an adult person, the courts, through the years, have set a tariff 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. For the rape of a child, the courts have set a tariff between 10 to 15 years imprisonment. see Mark Lawrence Mutch v The State, Criminal Appeal No. AAU 0060 of 1990, Fiji Court of Appeal; The State v N. K, Criminal Case No. HAC 155 of 2010, High Court, Suva; State v Simione Talenasila, Criminal Case No. HAC 11 of 2010, High Court, Lautoka. The actual sentence will depend on the aggravating and mitigating factors.
   
8. The aggravating factors, in this case, were as follows:
   
   • (i) Breach of Neighbourly Trust. The complainant's family and the accused's family lived next to each other. In fact, their house were approximately 100 meters apart. According to the prosecution, the female complainant treated the accused as her "uncle", and likewise, the accused treated the female complainant as his "niece". She visits the accused's house every now and then. On three occasions, the accused did the unthinkable by committing the offence of rape against her. This was a serious breach of neighbourly trust between the complainant's family and that of the accused.
     
   • (ii) Rape of a child. The courts have said repeatedly that children are the most vulnerable in our society, and must be protected. In fact, children are the future of this country, and their wellbeing must always be protected. The accused's action in raping this child is despicable, and a severe sentence must be given, as a warning to other would-be offenders.
     
   • (iii) The accused's criminal actions had ruined this child's life. She was a bright student before the incident. Now, her standard of education has dropped drastically. She is fearful most of the time and wants to be left alone. She suffers from bed wetting after the incident, and at times, dreams of weird things. The quality of this child's life had been affected as a result of the accused's unlawful actions.
     
9. The mitigating factors were as follows:
   
   • (i) At the age of 53 years old, this is the accused's first sexual offence;
     
   • (ii) You pleaded guilty to the offence, although this was 1 year 4 months 21 days after first call in the High Court. You nevertherless saved the court's time, and the need for the complainant to relieve her ordeal in the courtroom, by giving evidence;
     
   • (iii) You have been remanded in custody since 21st November, 2011, that is, approximately 1 ½ years ago.
     
10. On count no. 1, I start with a sentence of 13 years imprisonment. I add 5 years for the aggravating factors, making a total of 18 years imprisonment. I deduct 4 years from the 18 years for the mitigating factors, leaving a balance of 14 years imprisonment. On count no. 1, I sentence you to 14 years imprisonment.
    
11. On count no. 2, I repeat the process and sentence in count no. 1.
    
12. In Summary, your sentence are as follows:
    
    • (i) Count no. 1 : 14 years imprisonment
      
    • (ii) Count no. 2 : 14 years imprisonment
      
13. Because of the principle of totality of sentencing, I order the above sentence to be concurrent to each other, that is, you are to serve a total sentence of 14 years imprisonment.
    
14. For raping this child complainant, I sentence you, Harry Rigamoto, to 14 years imprisonment, effective forthwith. You are to serve a non-parole period of 12 years imprisonment.
    
15. The name of the child complainant is permanently suppressed to protect her privacy.
    

Salesi Temo
JUDGE

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