State v Suka [2015] FJHC 399; HAC178.2012S (29 May 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 178 OF 2012S

STATE

vs

JONE SUKA

Counsels : Mr. M. Vosawale for State
Mr. T. Tawake for Accused
Hearings : 19 March, 2 and 22 April, 2015
Sentence : 29 May, 2015

SENTENCE

1. On 19 March, 2015, in the presence of your counsel, you pleaded guilty to the following counts in the following information:
   

FIRST COUNT

REPRESENTATIVE COUNT

Statement of Offence

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

Particulars of Offence

JONE SUKA between the 1st day of January 2008 to the 31st day of December 2008, at Naimataga Village, Lami, in the Central Division, had unlawful carnal knowledge of U. B, without her consent.

SECOND COUNT

REPRESENTATIVE COUNT

Statement of Offence

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

Particulars of Offence

JONE SUKA between the 1st day of January 2009 to the 31st day of December 2009, at Naimataga Village, Lami, in the Central Division, had unlawful carnal knowledge of U. B, without her consent.

THIRD COUNT

REPRESENTATIVE COUNT

Statement of Offence

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

Particulars of Offence

JONE SUKA between the 1st day of January 2010 to the 31st day of January 2010, at Naimataga Village, Lami, in the Central Division, had unlawful carnal knowledge of U. B, without her consent.

FOURTH COUNT

REPRESENTATIVE COUNT

Statement of Offence

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

Particulars of Offence

JONE SUKA between the 1st day of February 2010 to the 31st day of December 2010, at Naimataga Village, Lami, in the Central Division, had carnal knowledge of U. B, a child then being under the age of 13 years.

FIFTH COUNT

REPRESENTATIVE COUNT

Statement of Offence

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

Particulars of Offence

JONE SUKA between the 1st day of January 2011 to the 31st day of December 2011, at Naimataga Village, Lami, in the Central Division, had carnal knowledge of U. B, a child then being under the age of 13 years.

2. On 22 April 2015, the prosecutor read the following summary of facts in court:
   

"...The victim in the matter is U. B (also known as L. A) the complainant who was born on the 14th of August 2001; she had been living with her paternal grandfather (Jone Suka) the accused, after her parents had separated when she was still a 7 months old baby. She was 10 years old when the matter was reported to Police.

The accused in this matter is Jone Suka, 72 years of Naimataga, Lami.

First Count

In the year 2008, between the 1st of January to the 31st of December, when the complainant was between 6 to 7 years old and in Class 1, she was living with her paternal grandfather who had sexual intercourse with her by penetrating her vagina with his penis.

The accused Jone Suka had called the complainant inside the room and had sexual intercourse with her. After breakfast one morning that year her grandmother left for fishing whilst she had stayed with her cousins namely Emori, Metui and Timoci Junior. The victim had been playing with her friend Angelina when the accused called her inside the house and told her to lie down and take off her pants and panty. The complainant refused and the accused pulled off her pants and forcefully put his penis inside her vagina. The complainant could not shout when the accused was penetrating her vagina with his penis.

Second Count

In the year 2009, between the 1st of January to 31st December, when the complainant was between 7 to 8 years old she was in Class 2. When she would return home from school, the house would be empty and the accused would be alone at home, he would have sexual intercourse with her, this happened on a number of occasions. The incidents happened when her grandmother was not at home. The accused had sexual intercourse by penetrating her vagina with his penis.

Third Count

In the year 2010, between the 1st day of January to the 31st day of January, when the complainant was 8 years old, she was in Class 3. The accused would have sexual intercourse (penetrating her vagina with his penis) with her on a number of occasions when they were alone in the house. The accused forcefully penetrated her vagina with his penis. The complainant does not recall the exact date but remembers that it happened different times when she was alone.

Fourth Count

In the year 2010, between the 1st day of January to the 31st day of December, when the complainant was between 8 to 9 years old, she was in Class 3 when the accused had sexual intercourse on a number of occasions when she was alone in the house. The accused forcefully penetrated her vagina with his penis. The complainant does not recall the exact date but remembers that it happened different times when she was alone.

Fifth Count

In the year 2011 between the 1st day of January to the 31st of December, when the complainant was between 9 to 10 years old, she was in Class 4. The accused again penetrated her vagina with his penis when she was alone and her Uncle and Aunty were out.

The medical Report dated 18th of April, 2012 basically stated as such:-

1. Specific Finding: Fugal infestation/lower thigh. Vagina/vulva normal: No fresh bleeding, no evidence of trauma. Genitalia hymen is torn/not regular.
   
2. Professional Opinion: Hymen infestation/not regular and smooth. Findings consistent with vaginal penetration.
   
3. Summary and Conclusion: Genital/vaginal examination shown disturbance or ruptured hymen consistent with penetration.
   

The accused has made admissions that he raped the complainant on three occasions and he started doing this in the year 2012. He did not admit to the fact that he raped her in the year 2006, 2007, 2008 and 2009 [Q16 – 37]..."

3. The court then checked with defence counsel on whether or not the accused agreed with the prosecution's summary of facts, and whether or not he had admitted all the elements of the offence of "rape", as outlined in counts no. 1, 2, 3, 4 and 5. Through his counsel, the accused admitted the prosecution's summary of facts, and admitted all the elements of the offence of rape, as outlined in counts no. 1 to 5. He accepted that the complainant was under 13 years old, at the material times, and thus, as a matter of law, was incapable of giving her consent to sexual intercourse at the time, and also that he was presumed to know, at the time, that a child was incapable of giving her consent to sex, at the time. As a result of the above admissions, the court found the accused guilty as charged on all counts, and convicted him accordingly, on those counts.
   
4. "Rape" as an offence, had always been treated seriously by the law makers of this country, and it carries a maximum sentence of life imprisonment (see sections 149 and 150 of the repealed Penal Code, Chapter 17 and section 207(1), 2(a) and (3) of the Crimes Decree 2009). His Lordship The Hon. Chief Justice, in Anand Abhay Raj v The State, Criminal Appeal No. CAV 0003 of 2014, Supreme Court of Fiji (20 August 2014), had now set the tariff for the rape of juveniles (under the age of 18 years) a sentence between 10 to 16 years imprisonment. The actual sentence will depend on the aggravating and mitigating factors.
   
5. In this case, the aggravating factors, were as follows:
   
   • (i) Serious Breach of Trust: The child's parents were separated when the child was 7 months old. Her mother left her with the accused, her grandfather, and his wife, her grandmother. They raised the child up as one of their own. A position of trust existed between the complainant child and her grandfather. A grandfather is supposed to look after and care after the child. However, you started to abuse this female child when she was 6 to 7 years old (2008). In actual fact, you raped her at that age. You continued raping her when she was 8 years old (2009), 9 years old (2010) and 10 years old (2011). You seriously breached the trust she had in you. As a child, you turned her life into a living hell. You must not complain when your liberty is lost to pay for your crimes.
     
   • (ii) Rape of Children: This is becoming prevalent in our society. Despite the court passing deterrent sentences against child rapist, the crime never seemed to decrease. The court will continue to pass deterrent sentences to protect children, but it also calls on the Religious Bodies of this country to restore public morality, by preaching to such people as the accused.
     
   • (iii) Your sexual offendings against this child showed your utter disregard to the child's human rights and her dignity.
     
6. The mitigating factors are as follows:
   
   • (i) At the age of 75 years old, this is your first offence;
     
   • (ii) Although your case was first called in the High Court on 1 June, 2012, the plea was never put to you until 19 March 2015, wherein you pleaded guilty to the charges. By doing so, you saved the court's time, and the need for the complainant to relieve her ordeal in the courtroom, by giving evidence;
     
   • (iii) You were remanded in custody from 18 May 2012 to 1 June 2012 (14 days), and from 2 April 2015 to 29 May 2015 (1 month 27 days) so you were remanded in custody for approximately 2 ½ months.
     
7. On count no. 1, I start with a sentence of 13 years imprisonment. For the aggravating factors, I add 3 years, making a total of 16 years imprisonment. For pleading guilty, I deduct 2 years 9 months, leaving a balance of 13 years 3 months. For being a first offender at 75 years, I deduct another 2 years, leaving a balance 11 years 3 months. I deduct another 3 months, for time served while remanded in custody, leaving a balance of 11 years imprisonment.
   
8. I repeat the above process and sentence for count no. 2, 3, 4 and 5.
   
9. A summary of 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
(iv) Count No. 4	Rape	11 years imprisonment
(v) Count No. 5	Rape	11 years imprisonment

10. Because of the totality principle of sentencing, I direct that all the above sentences are to be made concurrent to each other, making a final sentence of 11 years imprisonment.
    
11. Mr. Jone Suka, for raping your grand-daughter between 2008 to 2011, I sentence you to 11 years imprisonment, with a non-parole period of 9 years, effective forthwith.
    
12. The name of the complainant is permanently suppressed to protect her privacy.
    

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.

Solicitor for the Accused : Legal Aid Commission, Suva.