State v Turogo - Sentence [2013] FJHC 33; HAC40.2012 (1 February 2013)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 40/ 2012

BETWEEN:

STATE

AND:

PENI TUROGO

COUNSELS: : M.S.Vodokisolomane and Ms.Low for the State
Ms.Mele Lemaki for the Accused.

Date of Hearing : 01/02/2013
Date of Sentence : 01/02/ 2013

[Name of the victim is suppressed. She will be referred to as KT]

SENTENCE

01. The Director of Public Prosecution had preferred the following charges against the accused above named.

FIRST COUNT
[Representative Count]
Statement of Offence

INCEST BY MALE Contrary to section 178(1) of the Penal Code, Cap.17

Particulars of Offence

PENI TUROGO between the 1st of January 2009 and the 31st day of January 2010 at Dreketi, Macuata in the Northern Division, had carnal knowledge of KT who was to his knowledge his daughter.

SECOND COUNT
[Representative Count]
Statement of Offence

INCEST: Contrary to section 223 of the Crimes Decree No: 44 of 2009.

Particulars of Offence

PENI TUROGO between the 1st of February 2010 and the 31st day of December 2011 at Dreketi, Macuata in the Northern Division, had unlawful carnal knowledge of his daughter namely KT.

THIRD COUNT
[Representative Count)
Statement of Offence

INCEST: Contrary to section 223 of the Crimes Decree No: 44 of 2009.

Particulars of Offence

PENI TUROGO on the 14th day of April 2012 at Dreketi, Macuata in the Northern Division, had unlawful carnal knowledge of his daughter namely KT.

FOURTH COUNT
Statement of Offence

INDECENT ASSAULT: Contrary to section 212(1) of the Crimes Decree No: 44 of 2009.

Particulars of Offence

PENI TUROGO on the 21st day of May 2012 at Dreketi,Macuata in the Northern Division unlawfully and indecently assaulted a girl namely KT by kissing her on the mouth.

02. After trial on the charges, the accused was found guilty on 1-3 counts and acquitted from 4th count. Accordingly he was convicted on 1-3 counts.

03. In this case the victim gave evidence first. According to her she had been having sex with her father for some time. She was not threatened by her father. Police had taken her from the school and commenced investigation. She had been checked by two doctors. But she had given same history to the doctors.

04. Accused took up the position that he never had sex with the victim and therefore denied charges.

THE LAW AND THE TARIFF

04. As per section 223(1) of Crimes Decree, 2009 the maximum sentence for the offence of Incest by Relative is 20 years imprisonment. If the complainant is under the age of 13 years, the offender is liable to life imprisonment. This is the same imprisonment period under repealed old Penal Code. The tariff and the law in relation to this charge remains the same and are determined by case laws.

05. In Lalta Prasad v State Cr. App No: 059/2007, Madam Justice Shameem stated:

"The maximum sentence for incest by male was increased by Parliament in 2003, to 20 years imprisonment if the child was under the age of 13 years. In Sikeli Koro v The State [2002] HAA 0048.J the tariff for incest cases was said to depend on the age of the victim".

06. In State v Kumar [2010] FJHC 160; HAC 176.2008S (14th May 2010) Justice Temo J highlighting the above case state:

"Incest is also a serious offence. It carried a maximum sentence of 20 years imprisonment. The tariff for incest depended on the age of the victim. If the victim was aged 13 years, the tariff would be a sentence between 6-7 years imprisonment. If the victim was aged between 14-16 years old, the tariff would be a sentence between 4-6 years imprisonment. The actual sentence passed will depend on the presence or otherwise, of strong mitigating and/or aggravating factors".

07. In State v Ledua [2004] FJHC 118, Hac 0003.2004(28th June 2004) it was held that the starting point for incest of a victim over 16 years of age is 4 years imprisonment. It was further held that the starting point for incest of a victim between 13-16 years of age is between 7-10 years imprisonment. It was also held that the starting point for incest of a victim who has been subjected to long term sexual abuse from young age is between 10-15 years.

08. In State v Naidu [2004] FJHC 492; HAA 0080.2004L (29th October 2004), the state appealed against the leniency of sentence received by the accused. It was allowed. He was sentenced to 2 years imprisonment for 1 count of incest by male. After appeal, he was sentenced to 9 years imprisonment.

09. In Tamani v State [2005] FJCA 4:AAU0025.2003S (4th March, 2005), the accused appealed his conviction and sentence. It was dismissed. After a full trial, the accused was found guilty of 6 counts of incest by male. He had carnal knowledge of his 20 years old daughter and was sentenced to 11 years imprisonment.

10. The victim is the biological daughter of the accused. The accused knowing that the victim is his daughter, a child out of his own blood, had sexual intercourse with the victim. The action of the accused clearly demonstrates a complete disregard of the defined social, religious and traditional rules that prohibit sexual relationship between family members.

11. The accused is 55 years of age, married with 05 daughters. He is the sole bread winner of the family. He was in remand custody for nearly two months.

12. I have carefully considered these submissions in light of the provisions of the Sentencing and Penalties Decree No: 42 of 2009 especially those of the sections set out below in order to determine the appropriate sentence.

13. Section 15(3) of the Sentencing Decree provides that:

"as a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in Section 4, and sentence of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in the General Sentencing Provisions of the decree".

14. The objectives of sentencing, as found in section 4(1) of the Decree, are as follows:

1. To punish offenders to an extent and a manner, which is just in all the circumstances;
   
2. To protect the community from offenders;
   
3. To deter offenders or other persons from committing offences of the same or similar nature;
   
4. To establish conditions so that rehabilitation of offenders may be promoted or facilitated;
   
5. To signify that the court and the community denounce the commission of such offences; or
   
6. Any combination of these purposes.
   

15. Section 4(2) of the Decree further provides that in sentencing offenders, a Court must have regarded to:

(a) The maximum penalty prescribed for the offence;

(b) Current sentencing practice and the terms of any applicable and guideline Judgments;

(c) The nature and gravity of the particular offence;

(d) The defender's culpability and degree of responsibly for the offence;

(e) The impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) Whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

16. Now I consider the aggravating factors:

1. The victim is the biological daughter of the accused.
   
2. The accused had sexual intercourse with his biological daughter.
   
3. The accused took the advantage of the trust that the victim had placed on him as a result of their father and daughter relationship.
   
4. The accused disregarded the clearly defined social, religious and traditional rules that prohibit sexual relationship between family members.
   
5. The victim is emotionally distressed and psychologically affected due to this incident.
   
6. The accused upon having sexual intercourse with the victim took away her dignity in society and showed no concern for her future.
   

17. Now I consider the mitigating circumstances:

(c) Accused is 55 years old married with 5 daughters.

(d) He co-operated with the Police and made confession in his record of caution interview statement.

(e) He is the sole breadwinner of the family.

(f) He is remorseful.

(g) Period in remand.

(h) Accused has no previous conviction.

(i) Accused suffered a stroke while in remand prison about six months ago and he still has not fully recovered from it.

18. Considering all aggravated and mitigating circumstances I sentence you as follows:

(1)For the 1st count I take 12 years as starting point. I add three years for the aggravating circumstances and deduct 04 years for the mitigating circumstances.

(2) For the 2nd count I take 12 years as starting point. I add three years for the aggravating circumstances and deduct 04 years for the mitigating circumstances.

(3) For the 3rd count I take 12 years as starting point. I add three years for the aggravating circumstances and deduct 04 years for the mitigating circumstances.

19. I order all the sentences to concurrent to each other.

20. In summary you are sentenced to 11 years imprisonment.

21. Acting in terms of section 18(1) of the Sentencing and Penalties Decree, I further order that you are not eligible for parole within a period of 09 years.

21. 30 days to Appeal.

P.Kumararatnam
JUDGE

At Labasa
01/02/2013