State v Bureta - Sentence [2015] FJHC 361; HAC022.2014LAB (15 May 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 022 OF 2014 LAB

STATE

V

EPELI BURETA

Counsels: Mr. L. Fotofili for State
Mr. M. Fesaitu and Ms. S. Dunn for Accused

Hearing: 11 May, 2015
Summing Up: 12 May, 2015
Judgment: 12 May, 2015
Sentence: 15 May, 2015

SENTENCE

1. In a judgment delivered on 12 May 2015, the court found you guilty and convicted you on the following information:

FIRST COUNT
Statement of Offence

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

Particulars of Offence

EPELI BURETA on the 8th day of February 2014 at NasaqaVillage, Macuata in the Northern Division penetrated the vagina of K. D a girl aged 10 years with his finger.

SECOND COUNT
Statement of Offence

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

Particulars of Offence

EPELI BURETA on the 8th day of February 2014 at Nasaqa Village, Macuata in the Northern Division unlawfully and indecently assaulted K. D.

2. The brief facts were as follows. On 8 February 2014, the female complainant (PW1) was 10 years old, while the accused (DW1) was 19 years old. The two were known to each other, as they resided in the same village. Their homes were a 5minutes walk apart. In the early evening of 8 February 2014, the accused offered PW1's mother some pork curry. He went to his home to get the same accompanied by PW1. On their way back, they took a short cut, and came to a secluded spot.

3. The accused wanted to have sexual intercourse with PW1. He told her to lie on the ground. She did so. The accused then forcefully took off her clothes. He took off his trousers. He then inserted his finger into PW1's vagina. PW1 cried as it was painful. He then tried to insert his penis into PW1's vagina, but was unsuccessful. They were disturbed when PW1's mother was calling out for her. The two put on their clothes, and went separate ways.

4. "Rape" is always treated seriously by our lawmakers and it carries a maximum sentence of life imprisonment. The Honorable Chief Justice via the Supreme Court case of AnandAhayRaj vThe State, Criminal Appeal Case No. CAV 0003 of 2014, has set the tariff for the rape of juveniles a sentence between 10 to 16 years imprisonment.

5. For "sexual assault" the maximum sentence is a sentence at 10 years imprisonment. In The State vEpeli Ratabacaca Laca, Criminal Case No. HAC 252 of 2015, High Court, Suva, His Lordship Justice Paul Madigan set the tariff at a sentence between 2 to 8 years imprisonment. The more serious the assault, the higher the sentence will be. Of course, the final sentence will depend on the aggravating and mitigating factors.

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

(i) The rape of a child. The court had said previously, and will say again that, it will step in to protect the most vulnerable in our society, that is, children. In this case, the accused, 9 years older than the complainant, had no hesitation in finger raping this child. Then he sexually assaulted her by trying to insert his penis into the 10 years old complainant's vagina. He should not complain about the loss of liberties to pay for his crime.

(ii) By offending against the child, he showed utter disregard to the child's right to peace and human dignity.

7. The mitigating factors were as follows:

(i) At the age of 20 years, this is the accused's first offence;

(ii) Accused was remanded in custody for 2 weeks.

8. On count no. 1, I start with a sentence of 12 years imprisonment. I add 3 years for the aggravating factors, making a total of 15 years imprisonment. I deduct 2 weeks for time served while been remanded in custody, leaving a balance of 14 years 11 months 2 weeks. On being a first offender, I deduct 1 year 11 months 2 weeks, leaving a balance of 13 years. On count no. 1, I sentence you to 13 years imprisonment.

9. On count no. 2, I start with a sentence of 6 years imprisonment. I add 2 years for the aggravating factors, making a total of 8 years imprisonment. I deduct 2 years for the total mitigating factors, leaving a balance of 6 years imprisonment. On count no. 2, I sentence you to 6 years imprisonment.

10. In summary, your sentences are as follows:

(i) Count No. 1 - Rape - 13 years imprisonment.

(ii) Count No. 2 - Sexual Assault - 6 years imprisonment.

11. Given the principle of totality of sentence, I direct that the above sentences, be made concurrent to each other, that is, a total sentence of 13 years imprisonment.

12. Mr. Epeli Bureta, for raping and sexually assaulting the 10 year old complainant, on 8 February 2014, I sentence you to 13 years imprisonment, with a non-parole period of 11 years imprisonment.

13. The name of the complainant is permanently suppressed to protect her privacy.

SalesiTemo
JUDGE

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