State v Veivali [2013] FJHC 52; HAC067.2012 (18 February 2013)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 067 of 2012

BETWEEN:

THE STATE
PROSECUTION

AND:

JOSEVA VEIVALI
ACCUSED

Counsel : Ms S Kiran for the State
Accused in Person

Date of Sentence : 18 February 2013

SENTENCE

1. You stood charged for committing the offences of 'Sexual Assault' punishable under Section 210 (1) (a) read with sub-section (2); and, 'Rape' punishable under Section 207 (2) (a) of the Crimes Decree No 44 of 2009 in Count Nos. (1) and (2) of the information respectively. You pleaded guilty to the 1st count, while maintaining a plea of 'not guilty' in respect of the 2nd count. Court accepted your guilty plea to the 1st count and fixed the matter relating to the 2nd count for trial.
   
2. Summary of facts, as submitted by the state, was accepted by you.
   
3. Facts reveal that the victim was a girl of 7 years, who stood in relationship to you as daughter. You were 47 years old when you sexually invaded the victim on unspecified dates between 01 January 2011 and 24 April 2012.
   
4. It appears that you had taken the victim to a creek more than once under the pretext of fishing, made her lie and got her legs spread-out for you to lick her genitalia. You kept on doing the misdeed for some time. The matter was reported to police in April 2012 as the victim narrated the story to one of her cousins, who in turn told the mother of the victim.
   
5. 'Sexual Assault' is a serious offence, which is punishable with a term of 14 years under Section 210 (2) of the Crimes Decree, when the acts complained of involve any form of contact with genitalia. Facts, admitted by you, fit into this description of the offence.
   
6. The sentence for the offence, as considered by case precedents in State v Tuwai [2011] FJHC 287, State v Rainima [2012] FJHC 945 and Sikeli Nayata v State HAA 46/2008, ranges from 1-4 years.
   
7. Having regard to the facts of the case, I commence your sentence at the higher level of 3 years. I consider your relationship to the victim as the father as a ground for aggravating the offending. I, accordingly, enhance the sentence by two years to take into account the form of aggravation, which indeed was a breach of morality. The offence was repeatedly committed in stealth under pretexts having taken the victim away from other members of the family. This, too, constitutes a form of aggravation for which I add two more years to reflect in the sentence and reach 7 (seven) years.
   
8. There are obviously no circumstances to mitigate the offence.
   
9. However, I am inclined to give credit to your early guilty plea, which, in a sense is a display of true remorse. Your early guilty plea saved the victim from the ordeal of narrating her bitter experience in court at least partially. Accordingly, I reduce the sentence by 28 months.
   
10. Your past record is not free from violence as you had been dealt with by court from time to time from 1984-2009 for a variety of crimes, which, however, does not show any sexual offences. You are not entitled to any discount in the circumstances for your past record.
    
11. You have been on remand from 30 April 2012 to date spanning a period of almost ten months. I reduce a period of 8 months to set-off a substantial amount of your detention on remand.
    
12. Your sentence, accordingly, would be a term of 4 (four) year imprisonment. Acting under Section 18 of the Sentencing and Penalties Decree, I impose a non-parole period of 3 (three) years.
    

Priyantha Nawana
Judge
High Court
Lautoka
18 February 2013