State v Vakatawabai - Sentence [2014] FJHC 91; HAC223.2012 (25 February 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 223/ 2012

BETWEEN :

STATE

AND :

ABELE VAKATAWABAI

COUNSELS : Mr M Vosawale and Ms M Khan for the State

Ms N Nawasaitoga for the Accused

Date of Trial : 19-20/02/2014

Date of Summing Up : 21/02/2014

Date of Judgment : 21/02/2014

Date of Sentence : 25/02/2014

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

SENTENCE

[01] The Director of Public Prosecution had preferred the following charge against the above named accused.

FIRST COUNT

Statement of Offence

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

Particulars of Offence

ABELE VAKATAWABAI from the 25th day of January 2010 to the 30th day of April 2010 at Nasigatoka Village in Namosi, in the Central Division had carnal knowledge of I.S, a child under the age of 13 years.

[02] After the trial, the accused was found guilty of charge of Rape. Accordingly he was convicted.

[03] The accused committed the act on an 8 year old complainant. When she was waiting for her aunt at the bus shelter, the accused under guise of plucking guavas, pushed the complainant to the ground, removed her pants down and penetrated the complainant's vagina to some extent, before rubbing his penis five times on the complainant's vagina. After the act, the accused had threatened the victim with death if she divulges this incident to anybody in the village.

[04] The complainant was admitted in the hospital a few months later after signs of "Gonorrhea" a sexually transmitted infection.

[05] The caution interview statement of the accused was tendered by consent. The accused admitted in his caution interview statement and his evidence that he rubbed his penis about five times on victim's vagina, after taking the victim to a grass land on the pretext of plucking guavas.

[06] The doctor who gave evidence did not ruled out sexual intercourse. According to her a slight penetration is enough to contact sexually transmitted decease.

[07] As per Section 207(1) (2) (a) of the Crimes Decree No: 44 of 2009 the maximum sentence for an offence of Rape is imprisonment for life.

Tariffs for Rape

[08] In the case of Chand v State [2007] AAU005. 2006S (25 June 2007), the court referred to the case of Mohammed Kasim v The State Appeal 14 of 1993 where the same court observed:

"We consider that any rape case without aggravating or mitigating feature the starting point for sentencing an adult should be a term of imprisonment of 7 years. It must be recognized by the courts that the crime of rape has become altogether too frequent and the sentences imposed by the courts for that crime must more nearly reflect an understandable public outrage"

[09] In Sireli v State [2008] FJCA 86; AAU0098 of 2008S(25 November 2008). The court also referred to the case of State v Lasaro Turagabeci & others HAC 0008 of 1996, the court observed:

"The courts have made it clear that rapist will be dealt with severely. Rape is generally regarded as one of the gravest sexual offences. It violates and degrades a fellow human being. The physical and emotional consequences of the victim are likely to be severe. The courts must protect women from such degradation and trauma. The increasing prevalence of such offending in the community calls for deterrent sentence".

[10] In State v AV [2009] FJHC24: JAC 192.2008(2 February 2009) the court stated:-

"Rape is the most serious form of sexual assault. In this case a child was raped. Society cannot condone any form of sexual assault on children. Children are our future. The courts have a positive obligation under the Constitution to protect the vulnerable from any form of violence or sexual abuse. Sexual offenders must be deterred from committing this kind of offences.
...

The tariff for rape of a child is between 10-14 years imprisonment. (Mutch v State, Cr. App. AAU0060/99, Mani v State, Cr. App. No.HAA0053/02L, State v Saitava, Cr. Case No: HAC10/07, State v Marawa, Cr. Case No: 016/03, Drotini v State, Cr. App. AAU001/05 and State v Tony, Cr. App. No. HAA003/(08)"

[11] The accused is 23 years of age and resides with his parents and younger brother in Nasigatoka Village, Namosi. He is currently undertaking vocational studies at Namosi Secondary School. Both parents and accused are farmers. The accused lends a great hand to his parents in helping them in the plantation and also in the transportation of the produce to the market.

[12] In O'Keefe v State [2007] FJHC: 34 the Fiji Court of Appeal held that the following principle of sentencing:

"When sentencing in individual cases, the court must strike a balance between the seriousness of the offence as reflected in the maximum sentence available under the law and the seriousness of the actual acts of the person"

[13] 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.

[14] 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".

[15] 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.
   

[16] 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;

[17] Now I consider the aggravating factors:

1. The accused committed the act on a 8 years old child.
2. The accused was 20 years old at the time of committing the offence.
3. The accused showed no remorse before and during the trial.
4. The victim was threatened with death.
5. The accused allowed the victim to re-live her ordeal in court.
6. The complainant contacted a sexually transmitted disease.
7. The victim is emotionally and psychologically affected.
8. Accused's action demonstrate a complete disregard of the clearly defined societal, religious and traditional rules that prohibit sexual relation with a child.
   

[18] Now I consider the mitigating circumstances:

1. The accused is a first offender. He has no previous convictions.
2. The accused is the eldest in the family.
3. The accused assist his parents in farming.
4. The accused had undertaken vocational studies at Namosi Secondary School.
   

[19] Considering all aggravating and mitigating circumstances I take 12 years imprisonment as the starting point. I add 03 years for aggravating factors to reach the period of imprisonment at 15 years. I deduct 02 years for the mitigating factors.

[20] In summary you are sentenced to 13 years imprisonment.

[21] Acting in terms of Section 18(1) of the Sentencing and Penalties Decree, I impose 10 years as non-parole period.

[22] 30 days to appeal.

P Kumararatnam
JUDGE

At Suva

25/02/2014