State v Raqio - Sentence [2015] FJHC 362; HAC068.2014LAB (15 May 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 068 OF 2014 LAB

STATE

V

NEMANI RAQIO

Counsels Ms. A. Vavadakua for State
Ms. L. Raisua and Ms. S. Dunn for Accused

Hearings: 12 and 13 May, 2015
Summing Up: 14 May, 2015
Judgment: 14 May, 2015
Sentence: 15 May, 2015

SENTENCE

1. In a judgment delivered yesterday, you were found guilty and convicted, on the following counts, contained in the following information:

First Count
Statement of Offence

RAPE: Contrary to Section 149 and 150 of the Penal Code Cap 17.

Particulars of Offence

NEMANI RAQIO between 1st day of January 2009 and 31st day of December 2009 at Vuniwai Village, Saqani in the Northern Division had unlawful carnal knowledge of S.K. without S.K's consent.

Second Count
Statement of Offence

ATTEMPTEDRAPE: Contrary to Section208 of the Crimes Decree 44 of 2009

Particulars of Offence

NEMANI RAQIO between 1st day of January 2011 and 31st day of December 2011 at Vuniwai Village, Saqani in the Northern Division attempted to have carnal knowledge of S.K. without S.K's consent.

Third Count
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

NEMANI RAQIO between 1st day of November 2013 and 30th day of November 2013 at Vuniwai Village, Saqani in the Northern Division had carnal knowledge of S.K. without S.K's consent.

Fourth Court
(Representative Count)
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (b) of the Crimes Decree 44 of 2009.

Particulars of Offence

NEMANI RAQIO between 1st day of November 2013 and 31st day of December 2013 at Vuniwai Village, Saqani in the Northern Division penetrated the vagina of S.K. with his fingers without S.K's consent.

Fifth Court
Statement of Offence

INDECENT ASSAULT: Contrary to Section 212 (1) of the Crimes Decree 44 of 2009.

Particulars of Offence

NEMANI RAQIO between 1st day of December 2013 and 31st day of December 2013 at Vuniwai Village, Saqani in the Northern Division unlawfully and indecently assaulted M.N.

2. The brief facts were as follows. In 2014, you were 69 years old, while the first complainant (PW2) was 19 years old, and the second complainant (PW1), was 13 years old. Out of the two complainants, you abused PW2 the most. Both complainants were related to you.PW2 was your niece. Her father was your younger brother. PW1 was your granddaughter. You all resided in the same village, living next to each other. In fact, you mingle with each other nearly everyday.

3. Your abuse on PW2 started in 2009. You were 64 years old then. PW2 was 14 years old at the time. While PW2 was sleeping in your house sometimes in 2009, you crept up on her, forcefully took off her clothes, and forcefully had sexually intercourse with her without her consent. You well knew she was not consenting to sex, at the time, because she told you to stop, but you ignored her wish. You later warned her, and told her not to tell anyone, or you will do something to her.

4. In 2011, you were 66 years old, while PW2 was 16 years old. PW2's mother sent her to your house for some salt. She came to your house. You were alone. Your wife had just gone to the village shop to do some shopping. You invited PW2 into the house to give her the salt. Suddenly, you grabbed her, and tried to forcefully take off her skirt. You two struggled, and PW2 was holding onto her skirt, to prevent you forcefully taking it off. The two of you stopped when you heard your wife's laughter outside the house. You gave PW2 the salt, and $10, and warned her not to raise the alarm, or you will do something to her. She later returned to her mother.

5. In 2013, you were 68 years old, while PW2 was 18 years old. Your wife was watching movies in PW2's house. She sent PW2 to your house to get her jacket. PW2 came to your house. You were alone in the same. You told PW2 to come into the house to get the jacket. You were sitting on your bed. Suddenly you grabbed her, and forced her to your bed. You forcefully took off her clothes, and then inserted your penis into her vagina. You two stopped when a child came from outside the house, and called you to hurry up with the jacket. You then suddenly inserted your finger into PW2's vagina. You warned her not to tell anyone about the incident, or you will do something to her.

6. In December 2013, complainant no. 2 (PW1) was aged 13 years old. Her house was near to your house. PW1 wanted to drink tea, and she came to your house. She asked you for some tea. You told her to come into your house, and sit next to you, on the floor. She did so. You then stretched your hand under her skirt and tried to touch her panty. She tapped your hand away. She was shocked. She then returned to her house.

7. "Rape", as a criminal offence, had always been treated seriously by the law makers of this country, to reflect society's dim view of it. It carries a maximum sentence of life-imprisonment. For the rape of a juvenile, that is, someone less than 18 years old, the tariff is a sentence between 10 to 16 years imprisonment; Anand Abhay Raj v The State, Criminal Appeal No. CAV 003 of 2014, Supreme Court, Fiji, per His Lordship The Hon Chief Justice, pages 1 to 16. For the rape of an adult, that is, someone over 18 years old, the tariff is a sentence between 7 to 15 years imprisonment: State v Lepani Veimusu, Criminal Case No. HAC 257 of 2010S, High Court, Suva.

8. For "attempted rape", the maximum sentence is 10 years imprisonment. The tariff is a sentence between 1 to 5 years imprisonment: see Jioji Aunima v The State, Fiji Law Report, 2001, Volume 1, pages 213 to 217.

9. "Indecent Assault" carries a maximum sentence of 5 years imprisonment. The tariff is a sentence between 1 to 4 years imprisonment: see Ratu Penioni RakotavsThe State, Criminal Appeal No. HAA 068 of 2002S, High Court, Suva. The final sentence will depend on the aggravating and mitigating factors.

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

(i) Serious Breach of Trust. The two complainants in this case are closely related to you. PW2 is your younger brother's daughter. She is your niece. PW1 is your granddaughter. In an "—taukei" village setting, you stand in a position of trust to these two girls. As their uncle and grandfather, you are supposed to look after them, counsel them, guide them to become confident and useful members of society. Instead, you became their worst nightmares. Instead of been supportive to them, you preyed on them sexually. You abused their trust in you. You become a bad role model in the village. You will have to be made as an example to others to stop the morale decay in our society. You will have to loose your liberty for a while as a lesson to others.

(ii) Sexually offending against children. The courts had said before, and will say again that, those who abuse children sexually will have to pay with the lost of their liberty for a long while. The court cannot standby and watch the children of this country been molested by those who are very close to them. A deterrent sentence is obviously called for.

11. The mitigating factors are as follows:

(i) At the age of 71, this is your first offence;

(ii) You had been remanded in custody since the 26th September 2014, that is, approximately 8 months ago.

12. On count no. 1, I start with 13 years imprisonment. I add 3 years for the aggravating factors, making a total of 16 years imprisonment. I deduct 8 months for time served while remanded in custody, leaving a balance of 15 years 4 months. I deduct 2 years 4 months for being first offender at the age of 71, leaving a balance of 13 years imprisonment. On count no. 1, I sentence you to 13 years imprisonment.

13. I repeat the above process and sentence for count no. 3 and 4.

14. On count no. 2, I start with a sentence of 2 years imprisonment. I add 2 years for the aggravating factors, making a total of 4 years imprisonment. For the mitigating factors, I deduct 1 year, leaving a balance of 3 years. On count no. 2, I sentence you to 3 years imprisonment.

15. On count no. 5, I start with 1 year imprisonment. I add 1 year for the aggravating factors, making a total of 2 years imprisonment. I deduct 1 year for the mitigating factors, leaving a balance of 1 year imprisonment. On count no. 5, I sentence you to 1 year imprisonment.

16. The summary of your sentences are as follows:

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

(ii) Count No. 2 - Attempted Rape - 3 years imprisonment.

(iii) Count No. 3 - Rape - 13 years imprisonment.

(iv) Count No. 4 - Rape - 13 years imprisonment.

(v) Count No. 5 - Indecent Assault - 1 year imprisonment.

17. Because of the totality principle of sentencing, I direct that all the above sentences are to be concurrent to each other, that is, a total sentence of 13 years imprisonment.

18. Mr. Nemani Raqio, for sexually violating the two complainants (ie. PW1 and PW2), I sentence you to 13 years imprisonment, with a non-parole period of 11 years imprisonment, effective forthwith.

19. The name of the two female complainants are permanently suppressed to protect their privacy.

Salesi Temo
JUDGE

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