State v T. R. [2015] FJHC 169; HAC030.2014 (11 March 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 030 OF 2014 LAB

STATE

V

T. R.

Counsel : Ms. P. Low for State
Mr. M. Fesaitu for Accused

Hearing : 10 March, 2015
Sentence : 11 March, 2015

SENTENCE

1. In the interest of protecting the privacy of your complainant daughter, and the need for her to heal from the physical and psychological trauma you have caused her through your offendings, I have decided, in the interest of justice, to order permanent name suppression for your daughter and you. For the record, this name suppression order is not for your benefit, but for your complainant daughter. She needs to grow up and recover from the ordeal you have caused her.

2. Yesterday, you pleaded guilty to three counts of "rape" against your daughter, contrary to Sections 207 (1), 207 (2) (b) and 207 (2) (c) of the Crimes Decree 2009. You pleaded guilty in the presence of your counsel. You indicated to the court that you are doing so voluntarily and out of your own free will, and that no-one forced or pressured you to plead guilty.

3. The brief facts of the case were as follows. On 10 March 2014, you were 54 years old, married with six children. Two of the children were girls, and the rest, boys. The complainant was your eldest daughter. She was 23 years old at the time, and the bread winner in the family. At the time, you and your wife and two sons, were staying in her house. Between 3am and 4am on 10 March 2014 (Monday), you went to your daughter's bedroom. She was fast asleep, facing downwards.

4. You turned her over so that she was now facing the ceiling. She woke up and saw you. You then began to touch her thighs and sucked her breasts. Your daughter was shocked, frightened and began to cry. You then kissed her body, stomach, pulled off her panty, and then fondled the inside of her vagina with your fingers (count no. 1). Your daughter cried while you were doing the above. You later licked the inside of her vagina with your tongue (count no. 2). Later on you forcefully inserted your penis into her mouth (count no. 3). It was said that your daughter was so frightened of you assaulting her, at the time that, she did not scream nor resist. The matter was later reported to police. An investigation was carried out. Hence, the present charges against you.

5. Through your counsel, you have admitted the above summary of facts. The court checked with you and you counsel to see that you are admitting all the elements of "rape" in counts no. 1, 2 and 3. The court was satisfied that you have admitted all the elements of "rape" in counts no. 1, 2 and 3. The court then found you guilty as charged, and convicted you on those counts.

6. "Rape", as a sexual offence, is a serious one. It carries a maximum sentence of life imprisonment. It is the worst form of sexual violence against a person, and it seriously violates a person's dignity. Previous case laws had set a tariff for the rape of an adult, a sentence between 7 to 15 years imprisonment. The final sentence will depend on the aggravating and mitigating factors.

7. In this case, the aggravating factors were as follows:

(i) Breach of Trust. When a father rapes a daughter, it is the worst form of a parent abusing the trust his children put on him. Fathers are supposed to protect and safeguard their daughters. They are supposed to be a pillar of strength for their daughters, so that they grow up to be strong and confident members of society. Instead of doing the above, you sexually violated her. You abused the trust she had in you. You will have to atone for your misdeed by the loss of your liberty.

(ii) Three simultaneous acts of rape. Committing one rape offence, is in itself serious. You had to commit three acts of rape simultaneously, at the time. First, with your finger, then your tongue and last, the forceful insertion of your penis into her mouth.

8. The mitigating factors are as follows:

(i) At the age of 54, this is your first offending;
(ii) You have being remanded in custody since 13 March, 2014, approximately 1 year ago;
(iii) Although you pleaded guilty to the offences approximately 11 months after first call in the High Court, you nevertheless saved the court's time, and the need for the complainant to relive her ordeal in the courtroom, by giving evidence;
(iv) In an unusual twist of events, you apologized to your daughter in open court, and she accepted the same in court. In fact, she asked the court to be lenient to you, as she put it, "you are still her father, despite the offences you have committed."

9. On count no. 1, I start with a sentence of 13 years imprisonment. I add 3 years for the aggravating factors, making a total of 16 years imprisonment. I deduct 1 year from the 16 years for the time spent in remand while awaiting trial, leaving a balance of 15 years imprisonment. I deduct another 1 year from the 15 years for being a first offender, leaving a balance of 14 years imprisonment. I deduct another 1 year for pleading guilty, leaving a balance of 13 years imprisonment. For apologizing to the complainant in court, and she asking the court to be lenient to you and accepting your apology, I deduct 2 years from the 13 years, leaving a balance of 11 years imprisonment. I sentence you to 11 years imprisonment for count no. 1.

10. I repeat the above process and sentence for counts no. 2 and 3.

11. In summary, your sentences are as follows:

(i) Count no. 1 - Rape : 11 years imprisonment.
(ii) Count no. 2 - Rape : 11 years imprisonment.

(iii) Count no. 3 - Rape : 11 years imprisonment.

12. Because of the totality principle of sentencing, I direct that all the above sentences be made concurrent to each other, that is, a final total sentence of 11 years imprisonment.

13. T.R., for raping your daughter three times on 10 March 2014 at Cakaudrove in the Northern Division, I sentence you to 11 years imprisonment, with a non-parole period of 10 years imprisonment, effective forthwith.

Salesi Temo
JUDGE

Solicitor for State: Office of Director of Public Prosecution, Labasa
Solicitor for Accused: Legal Aid Commission, Labasa