State v Rasese - Sentence [2015] FJHC 629; HAC036.2015LAB (28 August 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 036 OF 2015LAB

STATE

V

MAIKELI RASESE

Counsels : Ms. A. Vavadakua for State
Mr. M. Fesaitu for Accused

Hearings : 26 August, 2015
Sentence : 28 August, 2015

SENTENCE

1. On 26 August 2015, in the presence of your counsel, you pleaded guilty to the following information:
   

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

MAIKELI RASESE, between the 1st day of July 2013 and the 30th day of November 2013, in Bua, in the Northern Division, had carnal knowledge of T.D. a child under the age of 13 years.

2. The prosecution then read the following summary of facts:
   

The Accused in this matter is Maikeli Rasese, aged 23 years. The victim is T.D, now 12 years old.

Between the 1st day of July 2013 and the 30th day of November, 2013, the Accused had carnal knowledge of T.D on more than one occasion. The victim recalls that between that time period, on one occasion, the Accused had gone to look for yams and the child had followed him into the farm. When they were alone, in the farm, the Accused told the child to take off his pants. The child refused but the Accused forcefully pulled down his pants and pushed him down on the grass, facing down. Thereafter, the Accused took off his own pants and pulled out his penis and inserted it into the anus of the child, T.D. At that time, T.D was 10 years old. The child never revealed the incident to anyone soon after that because he was ashamed and he feared the Accused.

3. The court then checked with your counsel to see that you are admitting to all elements of the offence of "rape". You admitted, through your counsel, the prosecution's summary of facts. You also admitted, through your counsel that, you penetrated the complainant's anus with your penis. The complainant was under 13 years old at the time, and in law, he was incapable of giving his consent to your above action, and also, as a matter of law, you are presumed to know that an under 13 year old child is incapable of consenting to what you did above. As a result of the above admission, I found you guilty as charged, and I convict you accordingly.
   
4. The rape of children is a despicable crime. The maximum sentence is life imprisonment. The tariff for the rape of children is a sentence between 10 to 16 years imprisonment: see Anand Abhay Raj vs The State, Criminal Appeal No. CAV 003 of 2014, Supreme Court of Fiji. The final sentence will depend on the aggravating and mitigating factors.
   
5. In this case, the aggravating factors were as follows:
   
   • (i) Rape of a child. The complainant was 10 years old at the time of the offence. The court had repeatedly said in the past that it will step in to protect the most vulnerable in our society, that is, children. You were 21 years old at the time of the offence. The complainant was 10 years old. The age difference between you two were 11 years. Yet you saw it fit to bully and molest the 10 year old complainant. Your actions were despicable. You will have to pay for your crime with the lost of your liberty for a long time.
     
   • (ii) Your offending had caused the complainant to be ashamed and fearful of you. Through your offending, you had no regard whatsoever to the complainant's right as a human being and his right to a peaceful life. You have ruined the quality of his life, and for this you must pay with the lost of your liberty.
     
6. The mitigating factors were as follows:
   
   • (i) Although you pleaded guilty to the offence 1 month 19 days after the first call in the High court, you nevertheless saved the court's time;
   • (ii) At the age of 23 years, this was your first offence;
   • (iii) You had been remanded in custody since 8 July 2015, that is, 1 month 20 days ago;
   • (iv) You seemed remorseful as shown by your early guilty plea.
     
7. I start with a sentence of 13 years imprisonment. I add 5 years for the aggravating factors, making a total of 18 years imprisonment. I deduct 3 years for the guilty plea. I deduct another 2 months for time served while remanded in custody. I deduct another 1 year for being a first offender. I deduct another 10 months for being remorseful. Total deduction for mitigating factors were 5 years, and such in deducted from the total 18 years, leaving a balance of 13 years.
   
8. Mr. Maikeli Rasese, for raping the 10 year old child, I sentence you to 13 years imprisonment with a non-parole period of 12 years, effective forthwith.
   
9. The name of the complainant is permanently suppressed to protect his privacy.
   

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Labasa

Solicitor for the Accused : Office of Legal Aid Commission, Labasa