State v Sereki [2014] FJHC 680; HAC171.2014 (19 September 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. 171 of 2014

STATE

V

PITA SEREKI

Counsel: Ms. K. Semisi for the State
Mr. M. Fesaitu (L.A.C.) for the Accused.

Dates of hearing: 14, 27, 28 August 2014
19 September 2014.

SENTENCE

1. The accused has been charged with the following two offences:
   

FIRST COUNT

RAPE:Contrary to section 207(1) and 2(b) and (3) of the Crimes Decree no.44 of 2009

Particulars of the Offence

Pita Sereki on the 23rd May 2014 at Nasinu in the Central Division penetrated the vagina of (name suppressed), a 6 year old girl, with his finger.

SECOND COUNT

SEXUAL ASSAULT:Contrary to section 210(1) of the Crimes Decree No.44 of 2009.

Particulars of the Offence

Pita Sereki on the 23rd day of May 2014 at Nasinu in the Central Division unlawfully and indecently assaulted (same victim as in Count 1) by licking her vagina.

2. On the 28th August 2014 in this Court, the accused entered pleas of guilty to both counts and on the 12th September 2014 he admitted a set of relevant facts put to him. On his pleas and agreement to the facts I found him guilty of both counts and convicted him of them both.
   
3. The facts agreed state that boththe accused, aged 25 and unemployed, and the victim Mere (not her real name) who is 6 years old both live in a temporary settlement in Tacirua. They are first cousins.
   
4. On the 23rd May 2014 Mere was at home with her grandmother when the accused walked past. He spoke to her and told her to have her bath and come to his house which was two houses away. She did that and on arriving at the house the accused took her into a room made her lie on the bed and take her pants off. He then proceeded to put his finger into her vagina and licked her vagina. He took a picture of her vagina on his mobile phone. He gave her some food to eat after which she returned home. Three days later, she told her grandmother what the accused had done to her. As a result, Mere's mother and the Police were informed.In an interview under caution the accused readily admitted the two offences.
   
5. In mitigation, counsel for the accused tells me that the accused is 26 years old, single, and has a clear record. He is educated to Form 1. At one time he worked as a juice seller earning $70 perday, money which he used to support his parents and 4 siblings who are still schooling. Counsel stresses his client's co-operation with the Police on first enquiry and his early plea of guilty when arriving at the High Court. I am told that he is remorseful and has sought forgiveness from the victim and her family.
   
6. The tariff for rape of a child has recently been set at between 10 to 16 years imprisonment in the Court of appeal case of AnandAbhayRaj AAU 0038 of 2010.
   
7. The tariff for sexual assault is a term of imprisonment of between 2 to 8 years with the high end of the range being reserved for serious assaults involving contact between mouthand genetalia. (seeEpeli Ratabacaca LacaHAC 252 of 2011).
   
8. Aggravating features in this particular case are first the breach of trust that Mere must have had in her cousin, a man 19 years older than she was. By abusing a 6 year old he is taking advantage of a particularly vulnerable child. It was also anaggravating feature that after these deplorable crimes were committed on a child that he would further insult her dignity by photographing her genitals.
   
9. For the first offence of rape, I take a starting point at the bottom of the accepted tariff, a term of 10 years. For the aggravating features referred to above I add a total term of 6 years to that bringing the total term to a period of 16 years. Such a term is condign punishment for a breach of trust case where a vulnerable young child, unable to defend herself has been taken advantage of. For the accused's clear record and for the 4 months he has spent in custody for this case, I deduct one year bringing the interim total down to 15 years. For his early co-operation with the authorities and for his early plea of guilty saving the necessity for the child having to give evidence in Court, I afford the accused a reduction of 5 years bring the final sentence to a term of 10 years imprisonment. He will serve a term of 8 years before being eligible for parole.
   
10. For the second offence of sexual assault, I take a starting point of 7 years and for all of his mitigating features referred to above I reduce that to a term of 5 years imprisonment. In accordance with the "one transaction" principle that sentence is to be served concurrently with the rape sentence
    

P. Madigan J.
Judge

At Suva
19/09/2014