State v Raikadroka - Sentence [2014] FJHC 409; HAC80.2013 (9 June 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAC 80 of 2013

STATE

v

1. INOKE RAIKADROKA
2. MOHAMMED SAGAITU

Counsel: Mr. L. Fotofili with Ms. R. Uce for the State
Mr. J. Savou (L.A.C.) for the First Accused
Mr R. Vananalagi for the second accused

Dates of trial: 26 - 29 May 2014 and 2-3 June 2014
Date of Sentence: 9 June 2014.

SENTENCE

SLAVERY & TRAFFICKING IN CHILDREN

[1] The two accused, Inoke Raikadroka and Mohammed Sagaitu were convicted after trial of the offences as set out in the schedule hereto.

[2] The facts of the case were that in the midd the ythe year in 2012, the first accused ("Inoke") had met four girls in a Suva City park one night. Three of the girls were sisters aged 18, 17 and 15 at the time and the fourth was their friend. All had been working as sex workers under the control of one Darren. The two younger sisters are Girl 'X' (aged 17) and Girl 'Y' (aged 15) referred to it in the charges. At the time the girls appeared to be destitute with no place to go so he, knowing that they were Darren's "girls" made them a proposition. He took them for dinner followed by a drink party in his room at the Elixir Motel. At that party they discussed the sex business, fees, the splitting of fees for commission, and he asked them if they were prepared to work for him. They agreed but then immediately arose the "Darren" problem. Darren had heard that his girls had gone with Inoke and he was therefore texting Inoke, making vile threats and demanding to know where they were. Inoke kept the two younger sisters there for 2-3 months at the Elixir Motel, having them provide sexual services for clients that he arranged. At first he received a commission from the fee paid but later he asked from them for all of the money which they gave to him in return for their "keep". That keep consisted of the room charge being paid, food, entertainment by way of drugs and alcohol, beautification and nice clothes and shoes – all to make more attractive his "products" as he referred them as in his cautioned interview. The girls had come from a dysfunctional family where the parents were separated, the father was an alcoholic, there was a domineering and erratic grandmother. Many times there was no food in the house and they were sent to school without lunch or lunch money.

[3] When the clients became scarce and the expenses too high, Inoke moved operations from the motel room to a flat he rented at Raiwai. He moved the girls with him and from there they continued the business of providing sexual services, Inoke arranging clients and arranging for them to go to hotels or motels to service the clients. The second accused from thereon figures prominently in that he too arranged clients and took the girls by taxi usually to their assignments. There was no doubt that he knew what the girls were going to do on those occasions.

[4] After a few months in Raiwai, they all went their own ways after an altercation with the neighbours. The girls moved to a motel and the first accused went to Nadi to try something new because as he said in evidence "sex work has a shelf life". It would seem that nothing "new" eventuated because at different times the two sisters ('X' and 'Y') went to Nadi on arrangement by Inoke to provide sexual services to clients that he had secured there.

The Offences

[5] Slavery is committed when a person either inside or outside Fiji intentionally owns a slave or exercises over a slave any of the powers attaching to the right of ownership[1]. There are other limbs of the offence which do not pertain to this case. The maximum penalty for the offence is 25 years imprisonment.

[6] Reduced to simple terms then the offence denotes having a person with you and doing things in respect of that person which would be indicative of ownership.

[7] In this case the evidence of "ownership" came from three sources:

1. A description by the accused of the girls as his "products",
2. His fear of, and hiding the girls from their previous owner "Darren" and
3. The manner in which he kept the girls both at the motel and in the flat at Raiwai – selling them for sexual services to clients that he arranged and keeping the money that they earned. This money he spent extravagantly on the girls indulging them in new clothes, shoes, food and alcohol but then slaves can live in palaces as well as sordid hovels. The life of slavery these girls were subjected to was a life of having to provide sexual services on demand and in not retaining the money earned by those services for themselves but all of it going to the "controller" or pimp.
   

[8] Slavery is the utter abuse of the human right to freedom (as recognized in clauses 10 and 11 of Fiji's Constitution 2013) No person may be held in slavery or servitude and every person has the right to freedom from inhumane and degrading treatment.

[9] The treatment of these teenage girls at the hands of the first accused was egregious: they were sold like objects and forced to work with no pay. They were used by him to make profit.

[10] It is perhaps tempting to say that the girls were willing and agreed to this arrangement and therefore they cannot be said to be slaves. Such a proposition however ignores two very important factors. First is that a 15 year or a 17 year old girl is hardly mature enough to know what is good for her, and to realize she is being exploited because she is slim and very attractive; secondly they were inveigled into this servitude by coercive manipulation. It is a condition (and slavery is a condition) that sociologists refer to as "situational coercion". The girls coming from a broken, alcoholic home with no food are suddenly confronted with food every day, new clothes, beauty treatments, entertainment and with no real alternative place to go, they were coerced or manipulated by the situation to remain in servitude. A dependency was created which is just as powerful a force as physical threat or force by violence or locks on the door. The situation sadly removed their power of choice.

[11] Apart from this condition of slavery which is obnoxious in itself the situation was aggravated by the fact that the "slaves" were children being 17 years and 15 years. Further aggravation can be seen that the condition was extended over a long period of at least seven months and even thereafter the girls were "on call" to go to Nadi to service more clients for Inoke.

[12] There has never been a case of slavery in Fiji before, nor has either defence counsel been able to provide authorities from other commonwealth jurisdictions.

[13] Because it is such an outrageous and shameful crime, denying the victim(s) their constitutional and community rights a long term of imprisonment must be imposed.

[14] Fiji has ratified the international treaty called "Convention to Suppress the Slave Trade and Slavery" (1926) (ratified by Fiji in 1972) whereby Article 5 the parties undertake to promulgate severe penalties for slave trading, slave-holding and enslavement. Fiji, being a signatory to the treaty has now enacted laws against slavery with severe penalties, and it is incumbent on the judiciary to honour that sentiment and pass heavy sentences accordingly.

[15] In recognition of the maximum penalty this Court takes a starting point for the crime of ten years imprisonment. For the aggravation of the slaves being children which the Court regards as being very serious indeed I add a further term of 5 years to the sentence. For the aggravation of long term enslavement, I add a further period of two years to the sentence, bringing the interim total to a term of 17 years imprisonment.

[16] In mitigation, counsel for the first accused tells me that Inoke is 24 years old and currently unemployed. He comes from a broken family and was reared by an Aunt. He dropped out of school early – making a living by doing odd jobs before becoming a sex worker. He met the two girl victims in the course of his work and he says they spent 8 months together because they shared the experience of coming from broken homes and of having to survive through sex work. He still maintains that he had no interest in being a slave master but wanted merely to provide for them and treat them as family.

[17] Inoke has one previous charge for theft and he is still serving a suspended sentence for that offence. He can therefore have no credit for being of good character. Nor do his family circumstances afford any great degree of credit.

[18] However in recognition of his time spent in custody, his pathetic upbringing which forced him "onto the streets" and his generosity towards his girls I deduct two years from the sentence. I deduct a further year for his relative youth meaning he will serve a total sentence of 14 years for this crime.

[19] This is the sentence I pass for each of Count One and Count Two.

[20] Each term (for Count One and Count Two) will be served concurrently.

Domestic Trafficking in Children

"Trafficking is a breach of human rights because it objectifies human beings"[2].

[21] As with slavery, this offence has never come before the Courts in Fiji before and therefore there are no authorities that establish an appropriate sentence for the offence.

[22] Domestic trafficking in children created by s.117 of the Crimes Decree 2009 is proved by:

(i) Moving a person from A to B in Fiji.
(ii) The person is under the age of 18.
(iii) The mover intends that after he moves the person to point B the person will be used for sexual services or otherwise exploited.

[23] "Moving" the child is a very widely defined term – it can be arranging or facilitating. In this present case, the first accused at times organized transport to collect one of the girls, at other times accompanied a girl to the place of assignation. The second accused more often that not would accompany the girl in a taxi to the motel/apartment and wait in the hope that he would get a "tip".

[24] There have been two previous trafficking cases in Fiji, but not of children and both were international trafficking. In the case of Murti [2010] FJHC 514 per Goundar J. (November 2010) it concerned an Indian national who organized the transportation of seven fellow countrymen to travel to New Zealand claiming that he had work for them there. Each paid about 150,000 rupees for the transport. He had them transit through Fiji, where he planned to abandon them. At the border, an official became suspicious and detained all 8 men. The facilitator was charged with trafficking under s.112(3) of the Crimes Decree (an offence which has extra-territorial jurisdiction). After trial, the learned Judge found that the act of abandoning them without funds was an act of recklessness as to exploitation. In his sentence, Goundar, J. said:

"The Crimes Decree 2009 which came into effect in February 1st, 2010 create a number of offences designed to fulfill Fiji's obligations under the United Nations Convention Against Transitional Organised Crime and two of its three protocols, the protocol to prevent, suppress & punish trafficking in persons, especially women and children (the Trafficking Protocol) and the protocol against the smuggling of migrants by Land, Sea and Air.

Although Fiji has not signed these international conventions, by criminalizing human trafficking and smuggling under the Domestic Law, Fiji has shown commitment to effectively address this global problem. Trafficking is a human rights issue. Traffickers are motivated by greed to take advantage of vulnerable victims. Traffickers are motivated by greed to take advantage of vulnerable victims. Traffickers use coercive tactics including deception, fraud, imitation, isolation treat and use of physical force.........to control their victims. The victims are generally subjected to degrading forms of exploitation such as forced prostitution, domestic servitude and other kinds of work".

[25] In the Murti case the Judge sentenced the trafficker to 6 years imprisonment while saying that there was no evidence of physical exploitation.

In the case of Laojindemanee and Others HAC 323/12, a case decided in this Court, the traffickers had brought three Thai girls into the country. The girls having been told that they were going to work as masseuses in an idyllic setting by the sea, it was only on arrival that they learned that they were to become sex workers. Although there was international trafficking from Thailand, there was one element of domestic trafficking in the case where there was a driver employed to bring the girls from Nadi Airport to Suva City where they were to be based. He was sentenced to 8 years imprisonment; factors being in his favour that he was a rather small cog in this wheel of crime syndicate trafficking. The girls were all adults and there was no evidence that he knew he was driving them to exploitation. The maximum penalty for the crime was 12 years.

Neither Murti nor Laojindemanee are applicable to this case where the trafficking is of children, the children were being exploited for gain and the maximum penalty is 25 years.

[26] The accepted tariff for rapes of children is from 10 to 16 years (Anand Abhay Raj AAU 0038. 2014) and there is no reason why domestic trafficking in children should not attract a sentence which is similar if not greater than that range. While not detracting from the crime of rape of a child which is an abominable crime, trafficking a child for sexual services is more serious in that it is not one single act of violence, but is the making available a child for innumerable sexual acts for money. This money is not recompensed directly to the child as a reward but is used by either the first accused or the second accused as profit that they would spend on themselves and the girls. The sexual services to be demanded of the child after transportation were of course unknown and the potential for sexual abuse is immeasurable. The knowledge and intent of either of the accused that a payment had or would be paid to "perform" the sexual acts demanded removes any power the child might have had to consent or not to whatever act that was demanded of her. This exploitation for financial gain is unspeakably loathsome.

[27] There is no reason why this crime should not attract sentences in the range of 12 to 18 years.

[28] I take a starting point for each of the trafficking convictions of 15 years. In looking at the first accused separately I add to that a term of 3 years for the fact that Girl 'X' told the Court that when the first accused "took her in", she had no idea of what to in being a sexual worker, and at the initial "orientation" party in the Elixir Motel, the first accused was a party to a "training" demonstration set up by another girl to show her how to "please" a man. To pervert a 17 year old girl in such manner is seriously aggravating. From the interim total of 18 years, I deduct 2 years from that total for the first accused's relative youth and pathetic childhood which forced him into the trade. He does not have a clear record which would allow any further discount. The final sentence for the first accused for each of the trafficking charges will be a term of 16 years. These terms are to be served concurrently with each other and concurrent to the term imposed for slavery, making a total term of imprisonment for the first accused to be one of sixteen years. He will serve a minimum of 14 years imprisonment before being eligible for parole.

[29] For the second accused I take the same starting point of 15 years imprisonment for each of the two trafficking offences he has been convicted of.

[30] The second accused is also 24 years old and from a broken home. He has supported himself by odd jobs and sex work since he was 12 years old. He has a clear record. His counsel says that he is remorseful which I have indeed seen throughout the trial, unlike the first accused who has shown no remorse whatsoever and has even an occasions shouted out his views from the dock.

[31] To his credit, the second accused has devoted time and effort to a sex workers' union known as SAN. Little is known of what the union does for the sex workers, but if nothing else education on the severe penalties contained in our Crimes Decree for offences of slavery and trafficking should be high on their agenda. The second accused's membership of the union does in some respects work against him because a union should be in a position to protect children from the more wretched and ignominious facts of sex work.

[32] There is no aggravating features of the second accused's crimes to add to the sentence. The crime itself subsumes the unsavoury and despicable features of the offence. He does have a good deal of mitigation in his favor:

1. Clear record
2. Relative youth
3. Time in remand
4. A wretched childhood forcing him to live by his own wits since 12 years old
5. Obvious remorse.
   

[33] His work in the sex workers union cancels itself out by credit for such help as opposed to the union's essential role to educate sex workers.

[34] For the mitigating features above I deduct a period of three years meaning that the second accused will serve a total term of 12 years for each of the two trafficking offences he has been convicted of. These terms will be served concurrently and he will serve a minimum term of 10 years before being eligible for parole.

Summary

1st accused:	Counts 3, 4, 6, 7 & 9	14 years concurrent.
	Counts 1 & 2.	16 years concurrent.

All counts to be served concurrently making a total sentence of 16 years. Eligible for parole after 14 years.

2nd accused:

Count 5 and 8

12 years concurrent.

Eligible for parole after 10 years.

P.K. Madigan
Judge

At Suva
9 June, 2014

SCHEDULE:

COUNT 1

Statement of Offence

SLAVERY: Contrary to section 103(1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

INOKE RAIKADROKA, between the 1st day of June 2012 and the 31st day of December 2012, at Suva in the Central Division, exercised over Girl 'X', the power to sell Girl 'X' for sex in an unrestricted way and to use the proceeds of Girl 'X's work as his own.

COUNT 2

Statement of Offence

SLAVERY: Contrary to 103(1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

INOKE RAIKADROKA, between the 1st day of June 2012 and the 31st day of December 2012 at Suva in the Central Division exercised over Girl 'Y', the power to sell Girl 'Y' for sex in an unrestricted way and to use the proceeds of Girl 'Y's' work as his own.

COUNT 3

Statement of Offence

DOMESTIC TRAFFICKING IN CHILDREN: Contrary to section 117(1)(a)(b)(c)(i) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

INOKE RAIKADROKA, between the 1st day of June 2012 and the 31st day of October 2012 at Suva in the Central Division facilitated the transportation of Girl 'X', a 17 year old from Suva City to Raiwai with intent that Girl 'X' be used to provide sexual services.

COUNT 4

Statement of Offence

DOMESTIC TRAFFICKING IN CHILDREN: Contrary to section 117(1)(a)(b)(c)(i) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

INOKE RAIKADROKA, between the 1st day of July 2012 and the 31st day of October 2012 at Suva in the Central Division facilitated the transportation of Girl 'X', a 17 year old from Raiwai to Suva City with intent that Girl 'X' be used to provide sexual services.

COUNT 5

Statement of Offence

DOMESTIC TRAFFICKING IN CHILDREN: Contrary to section 117(1)(a)(b)(c)(i) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

MOHAMMED SAGAITU, between the 1st day of June 2012 and the 31st day of December 2012 at Suva in the Central Division facilitated the transportation of Girl 'X', a 17 year old from Raiwai to Suva City with intent that Girl 'X' be used to provide sexual services.

COUNT 6

Statement of Offence

DOMESTIC TRAFFICKING IN CHILDREN: Contrary to section 117(1)(a)(b)(c)(i) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

INOKE RAIKADROKA, between the 1st day of October 2012 and the 31st day of December 2012 at Nadi in the Western Division facilitated the transportation of Girl 'X' a 17 year old from Suva to Nadi with intent that Girl 'X' be used to provide sexual services.

COUNT 7

Statement of Offence

DOMESTIC TRAFFICKING IN CHILDREN: Contrary to section 117(1)(a)(b)(c)(i) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

INOKE RAIKADROKA, between the 1st day of June 2012 and the 31st day of October 2012 at Suva in the Central Division facilitated the transportation of Girl 'Y', a 15 year old from Suva City to Raiwai with intent that Girl 'Y' be used to provide sexual services.

COUNT 8

Statement of Offence

DOMESTIC TRAFFICKING IN CHILDREN: Contrary to section 117(1)()(b)(c)(i) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

MOHAMMED SAGAITU, between the 1st day of June 2012 and the 31st day of October 2012 at Suva in the Central Division facilitated the transportation of Girl 'Y', a 15 year old from Raiwai to Suva City with intent that Girl 'Y' be used to provide sexual services.

COUNT 9

Statement of Offence

DOMESTIC TRAFFICKING IN CHILDREN: Contrary to section 117(1)(a)(b)(c)(i) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

INOKE RAIKADROKA, between the 1st day of October 2012 and the 31st day of December 2012 at Suva in the Central Division facilitated the transportation of Girl 'Y', a 15 year old from Suva City to Nadi with intent that Girl 'Y' be used to provide sexual services.

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^[1] s.103 Crimes Decree
^[2] N.Shameem in a paper “Human Trafficking in Fiji” (26 Feb 2013)