State v Naduva [2015] FJHC 679; HAC221.2014 (22 September 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 221 of 2014

STATE

V

FABIANO DAKAI NADUVA

Counsel: Ms. S. Navia and Ms. S. Tivao for State
Ms. M. Tarai for Accused

Hearing: 7th, 8th September 2015
Summing Up: 10th September 2015
Judgment: 11th September 2015
Sentence: 22nd September 2015

SENTENCE

[Name of the victim is suppressed. The victim will be referred to as M.S.]

1. FabianoNaduva, you stand convicted for one count of Rape contrary to section 207 (1) and (2) (b) and (3) of the Crimes Decree No. 44 of 2009.
   
2. The victim in this case was a 4 year old child at the time of the offence was committed. She is your sister's daughter (niece). On 13/05/2014 in the sitting room, you called her and inserted your fingers into her vagina. When she said it was painful, you said 'never mind'. Her mother was sleeping and she went and told her mother of what you did. Later her mother reported the matter to the police.
   
3. The maximum penalty for Rape under the Crimes Decree is imprisonment for life. Tariff for the offence of Rape of children is 10 – 16 years imprisonment. (AnandAbhay Raj v. State [2014] FJHC 12; CAV0003.2014 (20 August 2012).
   
4. Rape of small children has become prevalent in Fiji and this Court finds it appropriate to impose a sentence that would deter the future offenders from committing offences of similar nature.
   
5. In case of State v. Tauvoli [2011] FJHC 216; HAC 027.2011 (18 April 2011) 18 April 2011) Hon. Justice Madigan observed:
   

"Rape of children is a very serious offence indeed and it seems to be very prevalent in Fiji at the time. The legislation has dictated harsh penalties and the Courts are imposing those penalties in order to reflect society's abhorrence for such crimes. 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 that case the child was 14 years old and the accused was sentenced to 13 years with a non-parole period of 10 years.

6. In case of State v. A.V. [2009] FJHC 24; HAC192.2008 (2 February 2009) Hon Justice Goundar sentencing the accused who raped a 4 year old child said:
   

"Society cannot condone any form of sexual assaults on children. Children are our future. The courts have a positive obligation under the Constitution to protect the vulnerable from any form of violence or sexual abuse. Sexual offenders must be deterred from committing this kind of offences."

In that case the accused was 34 years old who was victim's neighbour and the victim called him grandfather. The accused was sentenced to 12 years imprisonment.

7. In the instant case, the aggravating factors are that you are the uncle of the victim and you are expected to give care and protection to the child and your actions have breached the trust. The victim is of very tender years of age who was 4 year old at the time you raped her.
   
8. The mitigating factors are that you are 28 years old; you support your parents and the siblings as mentioned by your counsel.
   
9. You admitted having a previous conviction where you were convicted by the Magistrate's Court, Suva in Case No. 1606/2010 on 20/05/2015 for 2 counts of sexual assault on 2 small children. Although you were convicted for those offences on 20/05/2015, you committed them on 19/01/2010. You committed those offences much before you committed this offence of rape. Therefore you are not eligible for a discount for your previous good behavior.
   
10. I take a term of 12 years as my starting point. I add 4 years for the aggravating factors and deduct 2 years for the mitigating factors.
    
11. Now your interim sentence is 14 years. I further deduct 1 year and 1 month for your period in remand. Now your sentence is 12 years and 11 months imprisonment.
    
12. Now I turn to consider whether your term of imprisonment in this case should or not run consecutively on the uncompleted sentence of imprisonment imposed by the Magistrate's Court, Suva in Case No. 1606/2010.
13. Section 22 (6) of the Sentencing and Penalties Decree 2009 provides:
    

Every term of imprisonment imposed on a prisoner by a court in respect of an offence committed while released on bail in relation to any other offence must, unless otherwise directed by the court based on exceptional circumstances, be served consecutively on any uncompleted sentence of imprisonment.

14. In the above Magistrate's Court case the accused committed the offence on 19/01/2010 and was sentenced on 20/02/2015. The sentence was 40 months imprisonment with a non-parole period of 34 month. The offence in the instant case was committed on 13/05/2014. Therefore you committed this offence whilst you were on bail in the Magistrate's Court in Case No. 1606/2010. Hence, in terms of section 22 (6) of the Sentencing and Penalties Decree unless otherwise directed by the Court based on exceptional circumstances the sentence of this case and the Magistrate's Court case would run consecutively.
    
15. According to the Sentencing Judgment of the Magistrate's Court case, you were convicted and sentenced for 2 counts of Indecent Assault on 2 small children who were living in the same residence with you. The allegation was that you licked their vaginas.
    
16. In the instant case the victim is 4 years old. In terms of section 4 (1) of the Sentencing and Penalties Decree 2009, one of the purposes for which sentencing may be imposed by a Court is to protect the community from offenders. Therefore in this case it is the duty of the Court to protect small children from being sexually exploited by the sexual offenders, by imposing adequate and deterrent punishment. Further I see no exceptional circumstances to order the sentences to run concurrently. Therefore acting in terms of section 22 (6) of the Sentencing and Penalties Decree I order that you sentence 12 years and 11 months in this case to run consecutively on the uncompleted sentence of imprisonment ordered by the Magistrate's Court, Suva in Case No. 1606/2010.
    
17. Further acting in terms of section 20 of the Sentencing and Penalties Decree I fix a single new non-parole period of 11 years for both this case and the Magistrate's Court Case No. 1606/2010.
    
18. Therefore your final sentence is 12 years and 11 months imprisonment for this case. The 12 years and 11 months imprisonment in this case is ordered to be served consecutively on the uncompleted sentence of imprisonment out of the 40 months imprisonment imposed by Magistrate's Court, Suva Case No. 1606/2010.
    
19. Your single new non-parole period is 11 years.
    
20. Having considered the domestic relationship between you and the victim 'M.S.', I order a permanent Domestic Violence Restraining Order in place identifying the victim 'M.S.' as the protected person.
    

Priyantha Fernando
Judge

At Suva
22ndSeptember 2015

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