State v Tokatokavanua - Sentence [2015] FJHC 656; HAC66.2015 (8 September 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 66 OF 2015

STATE

vs

ULAIASI MATAGASAU TOKATOKAVANUA

Counsel: Mr. A. Singh for the State
Ms. J. Lagi for the Accused

Date of Sentence : 08th September, 2015
(Name of the Victim is suppressed. Victim is referred as MS.)

SENTENCE

1. On the 24th July 2015 the Accused, Ulaiasi Matagasau Tokatokavanua, entered an unequal plea of guilty to one representative count of rape (penetrating the anus with his penis) of a nine year old boy MS contrary to Section 207 (2) (c) of the Crimes Decree No. 44 of 2009.
   
2. As the Accused was not represented by a Counsel at the time of his plea, I explained to the Accused the consequence of the guilty plea and the tariff for the sentence. He was given time to reconsider his decision and explained his right to consult a Counsel from the Legal Aid Commission.
   
3. Accused, appearing with a Counsel on the 27th July 2015, informed Court that he was still maintaining his earlier position and confirmed his guilty plea.
   
4. Court accepted the plea of guilt after being satisfied that it was voluntary and free from any influence.
   
5. Accused agreed a set of amended summary of facts filed by the State on 19th August, 2015 based on the contents of the cautioned-interview statement (which was attached thereto) in which the 'act' on the victim was admitted.
   
6. On 20th August 2015, Accused was convicted after he had agreed the summary of facts. He now comes before this Court for sentence on the conviction.
   
7. The victim resides with his mother and father. The mother of the victim heard rumors in the village that her son is being sexually abused by the Accused, Ulaiasi Matagasau Tokatokavanua. Upon being questioned by his mother, the victim admitted that the Accused sexually assaulted him on four different occasions.
   
8. The victim, in his statement to Police, stated that sometimes in 2014, whilst returning from the shop, the victim met the Accused who was collecting firewood on the side of the road. When the Accused saw the victim, he walked up to him and hugged him and then carried the victim to the nearby breadfruit tree. The Accused made the victim to lie down on his stomach after removing his clothes. The Accused also removed his clothes and then forcibly penetrated the victim's anus with his penis. The victim explained that when the Accused was penetrating his anus it was very painful.
   
9. The second incident happened when the Accused was walking with the victim to church. On the way to the church, the Accused took the victim to the same place where the first incident had happened. He undressed the victim, undressed himself and penetrated the anus of the victim with his penis. The 3rd and 4th incidents were repeated by the Accused in the same manner. The period of offending is between 2014 and April 2015.
   
10. The victim was medically examined at Namaka Medical Centre on the 17th of April, 2015. Dr. Salwa Sandhya, after examination noted erythema around the anus which was a sign of anal trauma. Subsequently, the Accused was arrested and interviewed. He admitted committing the offence.
    
11. The Accused in his cautioned interview admitted committing the offence in October 2014, November 2014, 3rd day of April, 2015 and 8th day of April, 2015.
    
12. The Accused at the time of the rape was 18 years, an adult in law and the victim was only 9 years, a juvenile.
    
13. The maximum penalty for Rape is life imprisonment. It is now well settled, and confirmed by the Supreme Court in Anand Abhay Raj CAV003.2014 that the tariff for rape of a juvenile is 10-16 years of imprisonment.
    
14. In Kasim v State (1994) FJCA 25; AAU 0021 j 93s (27 May 1994) the Court of Appeal said;
    

"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".

15. In State v, AV (2009) FJHC 24;HAC 192.2008 Justice Gounder noted that:
    

"in this case a child was raped. Society cannot condone any forms of sexual assaults on children. Children are our future... Sexual offenders must be deterred from this kind of offences."

16. It is clear how the criminal justice system in this country has attempted to address the public outrage over the offence of rape and rape of children in particular.
    
17. After a careful consideration of the legal background on sentencing of offenders in a juvenile rape case, I now turn to identify the aggravating and mitigating circumstances.
    

Mitigation

18. The Accused is a young and a first offender. He was 18 years at the time of offending. He has maintained a good and clean record.
    
19. In the case of Mosese Nariva v the State [2006] FJHC; HAA 0148J.2005, the Accused was a young offender of 17 years old, juvenile. He was a first offender who pleaded guilty without wasting court resources and being remorseful. Madam Justice Shameem in that case stated that:
    

"....the courts must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment."

20. The Accused has pleaded guilty at the earliest available opportunity. Having done so, he has saved the time and expenses of a full hearing. More importantly, he has prevented the victim from having to relive the ordeal he had unfortunately encountered.
    

Viliame v State [2008] FJHC 12; HAA 131-132.2007 which states:-

"Because the appellant pleaded guilty at the first available opportunity, his sentence should be reduced by a third..."

21. The Accused has enrolled himself at the Fiji National University to pursue studies on Office Administration. Also at the same time he is doing small work for neighbors and family to financially support his family. He lives with his sickly mother, younger brother and his aunts. He supports his mother and brother. He is the only source of support for his mother. He wishes to pursue further studies to be able to get proper employment and to be in a better financial position to financially support his mother and brother.
    
22. The Accused has shown remorse and empathy for his actions. As a sign of his remorse he promises not to re-offend. He seeks forgiveness from this Court and the complainant. The Accused and his family had sought forgiveness from the Victim and his family. Before the Accused was reported and charged for his actions the Accused, his family and the Victim's family had reconciled at the Victim's residence. The Accused had performed a Fijian traditional protocol for seeking forgiveness called "Bulubulu.
    
23. The Accused fully cooperated with Police when he was questioned by them regarding the incident.
    

Aggravation

24. Accused exploited the vulnerability of the nine year old victim knowing that he would not resist due to his condition.
    
25. The victim impact statement that has been filed is of little help to evaluate the psychological impact. There can be no doubt that a sexual abuse has an adverse effect on the emotional development of the victim.
    

In State v. Mario Tauva [2011] FJHC 216, HAC 027 Justice Paul Madigan stated that:

"our nation's children must be protected and they must be allowed to develop to sexual maturity unmolested. Psychologists tell us that the effect of sexual abuse on children in their later development is profound"

In State v. Anthony [2010] HAC 151 of 2010 Justice Nawana noted that:

This kind of immoral act on a little girl of MB's standing is bound to yield adverse results and psychological trauma, the effect of which is indeed difficult to foresee and assess even by psychologists or sociologists".

26. Accused breached the trust reposed on him by his neighbor.
    

Sentence

27. Given the circumstances and the existing positions of the Law, custodial sentence is inevitable in this case. However, the sentence should be in accordance with the facts of the case.
    
28. In the case of Kasim (supra), the Court of Appeal included that;
    

"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."

29. In Ram v State [2015] FJCA 24; AAU108.2011 (27 February 2015), the Court of Appeal allowed the appeal against sentence in that the 11 years imprisonment imposed on him by the learned trial judge was quashed and substituted with a sentence of 8 years and 9 months with a non-parole period of 7 years and six months. The Appellant was 57 years of age.
    
30. In State v Nayate Vatu [2015] FJHC 263; HAC 231.2011 (23 April 2015), Justice Madigan sentenced a 21 year old for two counts of Rape of 7 year old child with 5 years of non-parole period. In that case, the
    

Accused was 18 years when he offended for the first count but had just passed adulthood when he was charged for the second count. In relation to non-parole and concluding with a sentence below the tariff the Honorable Justice Madigan emphasized that;

"I am aware that this final sentence of seven years is below the tariff for rape of a child and it is in no way meant to distort the tariff already recognized by the Supreme Court. It is a lenient sentence in recognition of the youth of the Accused and his remorseful plea of guilty saving the child from giving evidence."

31. In State v Seniqai [2011] FJHC 375; HAC 010.2011 (8 July 2011), Justice Goundar sentenced an 18 year old Accused for 5 years. In relation to the non-parole his Lordship emphasize that;
    

"The purpose of your sentence is to denounce your offence and to deter you and others from committing this type of offence. Due to your youth I do not fix a non-parole period."

32. The Accused was 18 years at the time of the offending. He is considered as an adult in law. However, he had just attained adulthood when he committed the offence.
    

Having considered all the aspects, now I proceed to sentence the Accused as follows;

33. To reflect the gravity of offending, not the offender, I take a starting point of 10 years at the bottom of the tariff for this offence. To reflect the aggravating features of exploitation of vulnerability of a young juvenile, breach of trust and psychological and physical impact on the victim, I add three years to that starting point.
    
34. In recognition of his strong mitigation of clean record, early guilty plea, his personal circumstances and his duty to family, I deduct those three years bringing the interim sentence back to ten years. For his youth and his prospects as a young university entrant I deduct a further three years, bringing his sentence down to one of seven years.
    
35. Having considered the Accused's future prospects and desire for rehabilitation, I order that he serves only three years before he is eligible for parole.
    
36. I considered the age of the Accused at the time of offending in sentencing the Accused under tariff.
    
37. Accused is convicted for seven years imprisonment. He will serve a minimum of three (3) years before being eligible for parole.
    
38. 28 days to appeal to the Court of Appeal.
    

Aruna Aluthge
Judge

At Lautoka
08th September 2015

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