State v Waqanituva [2015] FJHC 809; HAC242.2013 (16 October 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 242 of 2013

STATE

V

SENIJIELI WAQANITUVA

Counsel: Ms. K. Semisi for the State
Mr. A. Paka for Accused

Hearing: 5th, 6th and 7th October 2015
Summing Up: 8th October 2015
Judgment: 9th October 2015
Sentence: 16th October 2015

SENTENCE

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

1. Senijieli Waqanituva, you stand convicted for one count of Rape contrary to section 207 (1) and (2) (b) and (3) of the Crimes Decree 44 of 2009.
   
2. The brief facts of the case were that you went to the victim's home in the night when her parents were away and you called her to the room. Her grandmother and her sisters had been sleeping in the sitting room. When the victim refused to come, you repeatedly called her. Then, when she came to the room you pestered her to remove her clothes and inserted your finger into her vagina. The victim 'M.V.' was 11 years old at the time you raped her.
3. Rape of small children has become frequent in Fiji and I find that the punishment imposed should be adequate and also should deter offenders.
   
4. In 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.

5. The maximum penalty for Rape under the Crimes Decree44 of 2009 is imprisonment for life. Tariff for the offence of Rape of children is 10 – 16 years imprisonment. (Anand Abhay Raj v. State [2014] FJHC 12; CAV0003.2014 (20 August 2012).
   
6. In the instant case, the aggravating factors are, you breached the trust as you are a cousin of the victim, and it is a domestic violence. The victim was 11 years old when you raped her.
   
7. The mitigating factors are that you are a young offender who was 20 years old at the time of the offence and also was a first offender. Your personal background that was submitted on your behalf that your parents were separated since your childhood and that you were living with the grandparents is also considered.
   
8. I take 12 years as my starting point and add 3 years for the aggravating factors. I deduct 3 years for the mitigating factors and now your sentence is 12 years imprisonment. I further deduct another 15 months for your period in remand.
   
9. Now your final sentence is 10 years and 9 months. You will serve 9 years before being eligible for parole.
   
10. Having considered the domestic relationship between you and the victim 'M.V.', I order a permanent Domestic Violence Restraining Order in place identifying the victim 'M.V.' as the protected person.
    

Priyantha Fernando
Judge

At Suva
16th October 2015

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