State v Sigabana - Sentence [2015] FJHC 423; HAC212.2013 (2 June 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 212 of 2013

BETWEEN:

STATE
Prosecution

AND:

SEVANAIA SIGABANA
The Accused

Counsel:
Ms. Vinti Prasad for the State
Mr. Seremaia Waqainabete of LAC for the Accused

Date of Sentence: 2nd June 2015

SENTENCE

[1] The accused is before the Court for sentence, after being convicted to the following charges;

Count No. 1

Statement of offence

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

Particulars of the offence

Sevenaia Sigabana on the 7th day of April 2013 at sector 4, Lomaivuna, Naitasiri, in the Eastern Division, penetrated the vagina of Lanieta Adimaibure with his fingers, without the consent of the said Lanieta Adimaibure

Count No. 2

Statement of Offence

INDECENT ASSAULT: contrary to section 212 of the Crimes Decree No. 44 of 2009

Particulars of the offence

Sevenaia Sigabana from the 28thday of April 2013 to the 18th day of May 2013 at sector 4 Lomaivuna, Naitasiri, in the Eastern Division, unlawfully and indecently assaulted Lanieta Adimaibure.

[2] You pleaded not guilty to above charges. The ensuing trial lasted for two days in this Court during which the victim, you and your wife gave evidence.

[3] At the conclusion of the trial, this Court; having considered the unanimous verdict of guilty returned by the assessors on both these counts and having reviewed the evidence and summing up in this trial, decided to accept the opinion of the assessors in respect of the charges and found you guilty and convicted of the said charges.

[4] The following facts were proven in evidence during the trial.

(i) The victim in this case was 18 years old at the time of the incident. You are her step father and married to her mother for 10 years. You have inserted your fingers into the vagina of Lanieta Adimaibure when she was sleeping on her bed in the morning hours of 7th April 2013.

(ii) In addition, on a subsequent date you have kissed her mouth and put your tongue into her mouth. On another day you have watched Lanieta Adimaibure using washroom.

[5] According to section the Crimes Decree No. 44 of 2009, the maximum punishment for rape is Imprisonment for life. It is a serious offence.

[6] The tariff for rape of an adult is well settled since the Judgment of Hon. Mr. Justice A.H.C.T. Gates (as he was then) in State v Marawa [2004] FJHC 338; HAC 0016T.2003S (23 April 2004). The starting point of a rape of an adult is 7 years. The tariff is 7 years to 15 years. I have also considered the judgment of the Supreme Court in Anand Abhay Raj v State [2014] FJSC 12 where it had dealt with similar factual situation.

[7] In Mohamed Kasim v The State (unreported) Fiji Court of Appeal Cr. Case No. 14 of 1993; 27 May 1994, the Court of Appeal observed thus:

"We consider that at any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment of seven years. It must be recognized by the Courts that the crime of rape has become altogether too frequent and that the sentences imposed by the Courts for that crime must more nearly reflect the understandable public outrage. We must stress, however, that the particular circumstances of a case will mean that there are cases where the proper sentence may be substantially higher or substantially lower than that starting point."

[8] The Offence of Indecent Assault attracts a punishment of five years as per section 212(1) of the Crimes Decree.

[9] I have followed the guidelines laid down by Justice Shameem in Rokota v State [2002] FJHC168, in determining the tariff for Indecent Assault count against you.

[10] As already noted by this Court in the preceding paragraphs, you have; in committing indecent assault on your step daughter, put your tongue into her mouth. In addition you watched her using washroom.

[11] However, the Court noted that even though there is bodily contact between you and your step daughter there was no use of genitalia in the commission of offence, as per the judgment of State v. Laca [2012] FJHC 1414 where Hon. Justice P. Madigan referring to the United Kingdom's Legal guidelines for Sentencing categorized sexual assault into following 3 categories;

Category 1 (the most serious)

Contact between the naked genitalia of the offender and naked genitalia, face or mouth of the victim.

Category 2

(i) Contact between the naked genitalia of the offender and another part of the victim's body;

(ii) Contact with the genitalia of the victim by the offender using part of his or her body other than the genitalia, or an object;

(iii) Contact between either the clothed genitalia of the offender and the naked genitalia of the victim; or the naked genitalia of the offender and the clothed genitalia of the victim.

Category 3

Contact between parts of the offender's body (other than the genitalia) with part of the victim's body (other than the genitalia).

[12] Therefore, your act of Indecent Assault on you step daughter is identified as an instance satisfying category 3.

[13] Considering the above circumstances, I commence your sentence at 9 years imprisonment for the charge of Rape.

[14] The aggravating factors are:

(i) Serious breach of trust by the victim towards you, being her step father,

(ii) Victim is relatively of young age,

(iii) Your lack of remorse by letting the victim relive her experience in Court,

(v) You took advantage of the victim's vulnerability,

(vi) You displayed total disregard of the victim's safety and wellbeing,

(vii) You have instilled insecurity in the minds of other children with your illegal actions.

[15] I add 4 years for above aggravating factors. Now your sentence is 13 years.

[16] The mitigating factors are:

(i) You are a first offender as conceded by the State ( the three previous convictions are over 10 years and are disputed by the accused),

(ii) You are a 44 year old subsistence farmer and sole breadwinner,

(ii) You are married with four step children,

(iii) your wife is having a physical illness,

(iv) You have provided for your step children for over the past 8 years,

(v) You have provided for the education of the victim,

(vi) You have committed rape by insertion of your fingers and not by your penis,

(vii) One incident and no repetition.

[17] I deduct 3 years for the above mitigating factors. Now the sentence is 10 years.

[18] In respect of the count of Indecent Assault, I impose a 3 year sentence of imprisonment.

[19] You were in remand for this case for a period of one week and were on bail thereafter and throughout the continuation of trial. The judgment of Bavoro v State [2013] FJHC 1 recognised that an "appropriate reduction in the sentence to reflect the appellant's remand period" could be made under section 24 of the Sentencing and Penalties Decree No. 42 of 2009. Considering the duration of the period you spent in remand I do not make order of any reduction from the period of imprisonment.

[20] Considering Section 18 (1) of the Sentencing and Penalties Decree, I impose 8 years of a non- parole period.

[21] Your sentences are as follows:

(i) Count of Rape - 10 years imprisonment
(ii) Count of Indecent Assault – 3 years imprisonment

Summary

[22] You are sentenced to 10 years imprisonment. You will not be eligible for parole until you complete serving 8 years of imprisonment.

[23] Considering the totality principle, I order both these sentences to run concurrently.

[24] You have 30 days to appeal to Court of Appeal.

Achala Wengappuli
Judge
High Court
Suva

Solicitors for the State: Office of the Director of Public Prosecutions
Solicitors for the Accused: Legal Aid Commission